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 ãâã 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
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 ãâã 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
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
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 ãâã 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
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
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
hath unwarrantably refused to Enter if the Appryzer or Adjudger insist in his Appryzing or Adjudication for Possession but he may forbear to make use of the Appryzing or Adjudication and if hely long out without further diligence he will be presumed to have relinquished his Appryzing or Adjudication and posterior Rights and Diligences will be preferred But if he enter in Possession no posterior Infeftment or Diligence will exclude him although he insist no further but the Charge of Horning and it hath not occurred to be determined how long that Right will subsist without infeftment but it hath been found that the Superiour will not be excluded from the Casualities of Superiority by his former Vassal if he have not been in the fault in refusing to Enter when the Appryzer or Adjudger offered him a Charter with a years Rent of the Land or Annualrent of the sum adjudged or appryzed for this was in the case of Ward February 9. 1669. Black contra David Trinch Neither was a Superiour found to have interest to exclude an Appryzer from Possession till he payed a years Rent but that he might possess during the legal if he insisted not for infeftment which insinuats that after expyring of the legal the Superiour might hinder the appryzer or adjudger to continue in possession till he take Infeftment and pay a years Rent but during the legal the appryzing or adjudication is but as a legal assignation to the Mails and Duties so that the appryzer cannot be forced to take Infeftment till the legal expyre and the Land become irredeemably his own and then he is to pay a years Rent but in this case there was no Charge upon the appryzing December 3. 1672. Mr. Hendry Hay contra Laird of Earlestoun Albeit in the case of Johnstoun contra the Tennants of Auchincorse July 22. 1665. the appryzer having charged the Superiour though he did not then obey yet appearing in the Process of Mails and Duties he offered now to receive the appryzer and therefore the appryzer was excluded till he payed the years rent which being under consideration of the Lords in the posterior case of Mr. Henry Hay they resolved to give the apyryzer his option within the legal to take Infeftment or not so that the Charge doth only hinder others to preveen but doth not exclude the Superiour from any Casuality of the Superiority falling by his former Vassal unless he had been in culpa refusing the appryzer Entry insisting orderly to be Entered which is a great advantage both to debitors and creditors not to have the accession of a years rent till the ancient Rights may be discovered and that it may appear whether the appryzing becometh an absolute Right The main division of Infeftments is in relation to the holding is in Ward Blench Feu Burgage and Mortification 31. An Infeftment Ward hath its denomination from Ward which is the chief Casuality befalling to the Superiour thereby it is the most proper Feudal Right we have and therefore wherever the holding appeareth not or is unclear there Ward-holding is understood it is ordinarly expressed by rendering service used and wont and if the reddendo be not express in name of blensh or Feu Ferm though it bear payment of some Duty yet Ward is inferred as by a Charter bearing sex dinarios nomine cana with a taxed Marriage So also it was inferred by a reddendo bearing a particular Duty payable at Whitsunday and Martimass cum servitiis in curiis nostris alibi debitis consuetis Hope de feudi renovatione Williamson contra Thomson The main importance of a Ward-holding was indefinite service to be performed by the Vassal to his Superiour and especially in War but that being now little in use the main effect of it is the Ward and Marriage of the Vassal of which hereafter 32. Ward Lands according to the nature of proper Feudal Rights might not be alienat by the Vassals granting any subaltern Infeftment thereof otherways not only the subaltern Infeftments were void but the Vassal granter thereof his own Infeftment became void by Recognition yet by Act of Parliament 1457. cap. 72. all Feus to be granted by the King Prelats Barons or Free-holders are allowed and declared not to fall in Ward as being but Heretable assedations as the act bears paying to the Superiour during the Ward the Feu-duty providing the Lands be set to a competent avail without prejudice to the King which is ordinarly interpret to be the retoured duty the same is repeated Par. 1503. cap. 91. and extended not only to subaltern Infeftments Feu but also of annualrents so that it be without diminution of the Rental which in Lands holden of the King by secular men is the retoured mail and in the Kings property and in Kirk-lands is the full rental they should happen to be at the time of the subaltern Infeftments which therefore the Feus may not diminish and the annualrent may not be so great as to exhaust the Land that the rental remain not free This last Act was temporal for that Kings life and therefore the extention as to annualrents ceaseth though the first Act expresseth that the King will ratifie all Feus granted by the Kings immediat Vassals yet the Act bears that the King thereby will give good example to the rest viz. to other Superiours and therefore a Feu of ward-Ward-lands granted by a Vassal holding Ward of a Subject before the Act of Parliament 1606. was found valid though without the Superiours consent June 24. 1668. Stuart of Torrence contra Feuars of Ernock This priviledge was taken away as to all Superiours and their Vassals except the Vassals of the King who only might grant subaltern Infeftments of their Ward lands Par. 1606. cap. 12. whereby all such subaltern Infeftments of their Ward-lands are declared null by exception or reply unless the Superiours consent were obtained and therefore the Superiours consenting in the Disposition by a Vassal to a Sub-vassal was found to exclude the Vassals Ward so far as concerns the Sub-vassal though it was a redeemable Feu July 2. 1672. Earl of Eglintoun contra Laird of Greenock The same was extended to the Vassals of the King and Prince who were thereby also excluded from setting of Feus of Ward-lands to Sub-vassals Par. 1633. cap. 16. but the Vassals of the King and Prince were restored to their former priviledge and the said Act 1633. wholly repealed Parliament 1641. cap. 58. which now is rescinded Par. 1661. cap. 15. Yet the Lands set in Feu during the time of these several Acts now repealed are valid So Ward-lands holden of the King or Prince may not be set in Feu nor of any other Superiours except Bishops and their Chapters for these might set Feus for a Feu-duty equivalent to the retour Par. 1621. cap. 9. But this Act was only temporary for three years and therefore subaltern Infeftments granted by Vassals if of the most part of the ward-Ward-lands infers recognition thereof
found lyable to the Liferenter for the true worth of the Liferent-lands and not according as he set them though they were never set before except the Appryzer had set the Lands wholly or near to the worth March 9. 1631. Lady Huttonhall contra Lairds of Moristoun and Touch. 9. A Liferenters Executors was found to have right to the Mertimas Term though the Liferenter died upon the Mertimas day in the afternoon February 16. 1642. Executors of the Lady Bruntoun contra Heir of the Bishop of Glasgow And they have right to the whole Cropt and Profite of the Land laboured and sown by themselves or which was in Mansing and not set to Tenents though the Liferenter died before Mertimas December 14. 1621. William ãâã contra James Nisbit A Liferenters Executors was found to have right to the whole years Rent of a Miln Liferented by her she having survived Martimas and that Miln Rents were not due de die in diem but as Land-rents not as house mails though the conventional Terms of the Miln Rent was after Martimas viz. one Term at Candlemess after the Separation and the other at Whitsonday thereafter July 20. 1671. Guthry contra Laird of Mckerstoun But a Liferenter Infeft in an Annualrent of Victual provided to be payed yearly betwixt Zule and Candlemess her Husband having died after Martimas and before Candlemess she was found to have no share of her Annualrent for that Cropt January 12. 1681. Katharine Trotter Lady Craiglieth contra Rochhead Lady Prestoungrange 10. A Conjunctfee or Conjunct-infeftment is that which is granted to more persons joyntly which if it be provided to them and their Heirs simply it maketh them and their Heirs to have equal right pro indiviso and they are all equally Fiars and after the death of any of them their Portions belong to their Heirs but the Liferent of the Deceassing accresseth not to the Survivers but when Conjunct-infeftments are provided to Husbands and Wives the longest liver of them two and their Heirs There the Law presumes that the Heirs are the mans Heirs and by that Interpretation the wife by the Conjunctfee is but Liferenter and generally Heirs of man and wife in all things except Moveable Rights are ever understood to be the mans Heirs propter eminentiam masculini sexus so was it found in an Assignation to a Reversion granted to a man and his wife and their Heirs that thereby the mans Heirs first these of the Marriage and next his other Heirs whatsomever were understood Hope Husband and Wife Walter Collestoun contra Pitfoddels Yet though this be presumptio juris it admits contrary more pregnant evidences as a Reversion granted to a man and wife and their Heirs found to Constitute the wife Fiar because she was Heretrix of the Wodset Lands Hope Liferent Kincaid contra Menzies of Pitfoddels But to prevent this question the provision ordinarly is to the longest liver of them two and their Heirs whilks failing to such particular Heirs exprest whereby these are commonly esteemed Fiars whose Heirs what some ever are substitute And yet a sum provided to a man and his Wife and the Heirs betwixt them whilks failing to divide betwixt the man and wifes Heirs was found not to Constitute the wife Fiar of the half but only Liferenter and the wifes Heirs of line to be Heirs of provision to the man and that the sum was Disposeable by him and Arrestable by his Creditors January 29. 1639. Graham contra Park and Gerdon So strong is this presumption that there is no more meaned to be granted to Wives but their Liferent-right and no part of the Fee unless the provision bear expresly a power to the wife to Dispone and if it be adjected at any time during her life the Fee will remain in the man and that power in the wife will rather be understood as a Faculty like to the power given to Commissioners to Dispone Lands then an Act of Property unless that the provision bear a power to the wife and her Heirs to Dispone but a Conjunctfee to future Spouses of Conquest during the Marriage in these Terms The one half thereof to be disponed upon as the Wife shall think fit being in a minut of Contract expressing no Heirs but being a short draught the Lady being of great quality having about 22000. Merks yearly in Liferent beside Money and Moveables and the Husband being a Noblemans Son having gained an Estate of 7000. Merks yearly in the Ware which he had lest the Clause was found to be understood and extended so as to make both future Spouses equal Fiars seeing the Conquest was mainly to arise out of the wifes Liferent June 27. 1676. Earl of Dumfermling contra Earl of Callender If a Conjunct-infeftment be granted to two or more the longest liver of them and express no Heirs but a liferent to them all the same accresseth to the Survivers or if it be a Right of Lands or Annualrents to a man and his Wife the longest liver of them two and to their Son named and his Heirs the man and his wife are both liferenters and the Son is Fiar only unless the right be for security of Sums of money and then the person named is but as Heir substitute the Father is Fiar even though the Son were infeft with the Father and Mother January 14. 1663. Thomas Bog contra Sir Thomas Nicolson July 23. 1675. Moor of Anistoun contra Laird of Lamingtoun 11. The main difference betwixt Conjunct-fees and other Life-rents is that the Conjunct-fiar though by interpretation Liferenter only and so may not alienat or waste yet by the nature of the right and custom they have the benefit of all Casualities befalling during their life and may dispose thereof which will not only be effectual during their life but simply for that individual casuality So Conjunct-fiars may receive and enter the Heirs of Vassals and have the benefit of their Ward Non-entry Liferent-escheat and may grant Gifts thereof effectually even as to the time after their death So also a Conjunct-siar infeft with her Husband in Lands cum Sylvis was found thereby to have right to make use of the Woods for her and her Tennants use January 10. 1610. Hunter and others contra Relict of Gadgirth Vide Title 13. § 41. Liferenters have not these Casualities of Superiority yet a Baron having disponed his Barony reserving his Liferent was thereby found to have right to receive the Heirs of his Vassals but not singular Successors Ianuary 11. 1611. Crawfurd contra Laird of Glaspen And there is reason that the Fiar disponing with reservation to himself whereby his own Infeftment stands pro tanto should have greater power then a Liferent apart or by reservation not being before infeft conjunctfees though publick as ordinarly they are and thereby as to the Superiour the Fee is full and the casualities of Ward and Non-entry excluded yet the Heir may enter to the Property and compel the Superiour to
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
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
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
to which it was estimate all the other Goods of the Wife were Paraphernalia whereof she had the sole Power and Right The Customs of most Nations even where the Roman Law hath much weight in this matter have returned to the natural course as is observed by Cassaneus ad consuetudines Burgundiae tit 4. And Duarenus tit ff de nupt in relation to the Custome of France Wessenbecius in parat ad tit ff de ritu nuptiarum And Covaruvias Epitt. lib. 4. Decretal part 2. cap. 7. In reference to the Customs of the Germans Spaniards and most part of the Nations of Europe Gudelinus de Jure Noviss sheweth the same to be the Custome of the Netherlands in which they do almost in every thing agree with our Customs to which we return By the Custome of Scotland the Wife is in the power of the Husband and therefore First The Husband is Tutor and Curator to his Wife and during her Minority no other Tutor or Curator need to be conveened or concur to Authorize So it was decided French contra French and Cranstoun hop tit de minoribus But on the contrair the Wife is in no case conveenable without calling the Husband and though she be Married during the dependance the Husband must be cited upon Supplication and the Process continued against him for his interest Spots Husband and Wife Margaeret Bailie contra Janet Robertson And likewise a Wife being charged upon her Bond given before Marriage but the Letters not being raised against her Husband for his interest they were found null by way of exception Nic. Reverentia Maritalis Relict of Robert Young contra Wachup yet a Wife was found con veenable without calling the Husband he being twenty years out of the Countrey and she repute Widow June 19. 1663. Euphan Hay contra Elizabeth Corstorphin Yea a Wifes Escheat or Liferent falls not upon any Horning execute against her during the Marriage because being then under the power of her Husband she hath no power of her self to pursue suspend or relaxe Dury February 16. 1633. Stuart contra Banner man and this was found though the Decreet was an ejection committed both by man and Wife yet where the Horning is upon a deed proper to the Wife as to divide the Conjunct-fee Lands Horning is valide Nic. Reverentia Maritalis Duff contra Edmonstoun or where the Horning was upon a Delinquence as on Laborrows Hope Husband and Wife Lord Roxburgh contra Lady Orknay In like manner a Wife cannot pursue or charge without concourse of her Husband and so Letters not raised at his instance were reduced though he concurred thereafter Dury July 27. 1631. Robert Hay contra Mr. John Rollo The like Spots Husband and Wife Napeir contra Mr. Robert Kinloch and Agnes Lial The like in a Reduction of an Heritable Right done by the Wifes Father on death bed which was not sustained unless the Husband had concurred or had been called in which case if he refused concourse without just reason the Lords would authorize the Wife to insist July 8. 1673. Christian Hacket contra Gordoun of Chapeltoun But we must except from this Rule if the Husband were Inhabilitat or forefaulted Had. the 26. of March 1622. William Hamiltoun contra Stuart or the Wife authorized by the Lords upon special consideration the Husband refusing to concur Dury the 9. of January 1623. Marshel contra Marshel Or that she were pursuing her Husband himself against whom ordinarily she hath no Action except in singular cases ut si vergat ad inopiam or in case he had diverted from her Dury December 21. 1626. Lady Foules contra her Husband Or if a Wife with concourse of her Friends at whose instance Execution was provided by her Contract were pursuing reduction of a deed done by her Husband in prejudice thereof during her life February 12. 1663. Lockie contra Patoun or that the Obligation in its own nature require execution in the Husbands life as an obliegement to Infeft the Wife in particular Lands but if it be a general Obliegement to imploy Money for her or to Infeft her c. which the Husband may at any time of his life perform the Wife will have no Action against him neither will she get Inhibition upon supplication unless the Lords grant the same upon knowledge that the Husband is becoming in a worse condition or that the Wife hath quite a present Infeftment for an Obligation of an other in which case the Lords granted Inhibition July 13. 1638. Lady Glenbervy contra her Husband This delay where a Term is not exprest is upon consideration of Merchants who ordinarily having no other means than the Stock with which they trade it would ruine them if they were necessitate to imploy it on security so soon as they are married It is a Priviledge of Women amongst the Romans per Senatus consultum velleianum that the Obligations by which they became surety or interceeded for others were void But our Custome hath inlarged that Priviledge so far that a Wifes Obligation for Debt or personal Obliegement contracted during the Marriage is null even though the Bond were granted by her and her Husband containing an Obliegement to Infeft the Creditor in an Annualrent out of their Lands and in this case the Bond as to the Wife and an Apprising thereon as to her Life-rent of these Lands was found null But here there was no special Obliegement of Annualrent or Wodset of the Wifes Life rent Lands but generally out of both their Lands Dury March 24. 1626. Greenlaw contra Gulloway The like Hope Husband and Wife Archibald Douglas of Tofts contra Mr. Robert Elphingstoun and Susanna Hamiltoun The like Dury January 30. 1635. Mitchelson contra Moubray in which case the Bond being granted by the Man and Wife and thereupon Apprising deduced though she did Judicially ratifie it upon Oath never to come in the contrair yet the Bond and Infeftment as to her Life-rent was found null seing there was nothing to instruct her Ratification but the Act of an inferiour Court whereof the warrand was not produced But a Wifes Obligation with her Husband conjunctly and severally oblieging them to pay and also to Infeft in an Annualrent out of either of their Lands found null as to the Wife in the Obliegement to Pay but not as to the Obliegement to Infeft December 15. 1665. Master John Ellies contra Keith Neither was a Wife found lyable for furnishing to the House in her Husbands absence furth of the Countrey which did only affect her Husband Spots Husband and Wife John Loury contra Lady Louristoun The like January 29. 1631. Porter contra Law The like though the cause of the Bond was Money advanced for the Wifes necessar Aliment for which no Process was granted against her till her Husband was first discussed December 22. 1629. Mr. David Artoun contra Lady Hackertoun And also a Wifes Obligation without consent of her Husband found not to affect her but him
though she was not praeposita Negotiis but because she was Persona Illustris and her Husband out of the Countrey Hope Husband and Wife Mr. David Russel contra Earl of Argyle but a Wifes Bond for necessar Habiliments for her Body found to obliege her self and not her Husbands Executors and as to these she may contract Had. July 6. 1610. Eustacius Wise contra Lady Hallyrudhouse this must be understood where the Wife has an Aliment constitute by her Husband or other Right exempt from his Jus Mariti And it was so lately found in the case of Adam Garrns Merchant contra Elizabeth Arthur December 19. 1667. February 23. 1672. John Neilson contra Arthur But a Wifes account of Furniture to her Person not being great found valide against her Husband being subscribed by the Wife though she was minor being Persona Illustris February 20. 1667. Andrew Littlejohn contra Duke and Dutchess of Munmouth This Priviledge of Wives was extended to Obligations or Dispositions made by the Wife though before compleating of the Marriage being after Contract and Proclamation whereupon Marriage followed January 29. 1633. ãâã contra Brown The like specially where the Proclamation was not only at the Husbands Paroch Church but the Wifes July 8. 1623 Stewart contra Aitkin The like of a Disposition in favours of the Wifes Children after their Contract and one Proclamation July 5. 1611. Fletcher in Dundee contra Brown Yet Wives Obligations relating to their Delinquence are not void but only such as relate to their Contracting So a Wife was found oblieged to fulfil an Act of a Kirk Session under a Penalty that she should forbear an other mans company which was found not to affect her Husbands Goods but her own Hope Husband and Wife John Bell contra Executors of James Hogg and the Kirk Session of St. Cuthberts Here also are excepted Obliegements relating to Dispositions of Lands Annualrents or Liferents of which hereafter 13. As to the Husband and Wifes Interest in their Goods by our Custome without any voluntar Contract there arises betwixt them a communion of all Moveables except the Habiliments and Ornaments of the Wifes Body which though they be superfluous and the Husband insolvent are not Arrestable for his Debts the Husband hath the full and sole administration of all moveable Goods belonging or accressing to the Wife during the Marriage and the Rents and Profits of Heretable Rights as being moveable And therefore an Heretable Bond found to belong to the Husband Jure mariti because he was married before the Term of Whitsonday at which time it was payable June 15. 1627. Nicolson contra Lyell and a sum was found to belong to the Executors of the first Husband though the Term of Payment was after his Decease and not to the Wife or her second Husband Also a Legacy left to a Wife was found to belong to her Husband Hope Legacies Elizabeth Brown contra ãâã Likewise a Husband found to have right to a Bond blank in the Creditors name which the Wife during the Marriage put in the hands of a third Party who filled up his own name therein though the Husband and Wife were voluntarly separate February 11. 1634. Drummond contra Captain Rollo except Aliments duely and competently provided for the Wife which are not Arrestable for the Husbands Debt November 29. 1622. Thomas Edmonstoun contra Christian Kirkaldie and Alexander Barclay The like of an Aliment modified by Decreet Arbitral betwixt the Husband and a third Party though the cause thereof was founded upon the Husbands Right March 27. 1627. Westnisbit contra Morison yea the Husband himself found to have no access to a Sum provided to a Wife by her Father for her Aliment July 4. 1637. Tennant contra ãâã This communion of Goods by our Custome extendeth not to the Wifes Rights Heretable as Lands Annualrents Heretable Bonds nor to Liferents for as to these the Wife may obliege her self personally in Clauses relative to such Rights as Clauses to Infeft Clauses of Warrandioe and Clauses of Requisition of Sums for which her Lands were Wodset by her if the Wife be first and principally bound with consent of her Huaband but where the Wife and Husband were bound for Infeftment in Lands belonging to the Wife and both bound in the Requisition yet thereby the Wife was not found oblieged either for granting the Infeftment or in the Requisition because it appeared that the Money was not borrowed for the Wifes use December 19. 1626. Mathie contra Sibbald other ways such Obliegements are effectual against the Wife The like Hope Annualrent Agnes ãâã contra James ãâã where a Wife was found lyable to pay an Annualrent disponed by her and her Husband out of her ãâã Fee-Lands even during the time they were in Ward The like of an Annualrent disponed by a Wife and her Husband for which both were personally oblieged in respect she lifted the Rents of the Lands out of which it was to be uplifted Spots Husband and Wife Walter ãâã contra Margaret Chisholm The like of a Clause of Requisition in a Contract of Wodset granted by the Wife upon her Lands stante matrimonia Hope Husband and Wife Agnes Gordon contra Elizabeth Gordon And this is the difference betwixt these and other Personal Obliegements of the Wife stante matrimonio which even though the Husband consent are ãâã and obliege her not yea a Renunciation of a Tenement by a Wife without consent of her Husband being absent though he ratified it at his return was found null Spots Husband and Wife Helen Melvil contra So that the Husbands Right Jure Mariti to the Rents and Annualrents of the Wifes Rights which are not Alimentary cannot be evacuate without the Husbands consent though the Wife may dispose of the Right it self to take effect after the dissolution of the Marriage In Heretable Rights of Wives Bonds bearing Annualrent though without a clause of Infeftment are comprehended for these remain Heretable ãâã ãâã relictum by the Act of Parliament 1661. cap. 32. And therefore a provision by a Father to his Daughter bearing Annualrent five per cent found not to fall under the Husbands ãâã Mariti June 28. 1665. James ãâã against ãâã Edgar July 4. 1676. John ãâã contra Bruce The Marriage without any Contract is a legal Assignation to the Rents and Profits of the Wifes Lands and other Heretable Rights during the Marriage so that without his consent the Wife cannot alter the condition thereof in prejudice of his Right during the Marriage Jus Mariti is so effectual as to the moveable Goods of the Wife that though a Life-renter in her second Contract of Marriage reserved a part of her Life-rent Lands to be solely at her own disposel and that the Husband in the same Contract of Marriage renounced his Jus Mariti thereanent yet that Renunciation was found to be his Jur. Mariti and so the profits of her Life-rent were affected by his Creditors it not being constitute
Husbands Revocation upon Death-bed subscribed by Nottars because of his Infirmity Hope Husband and Wife Earl of Angus contra Countess of Angus And a Husband was allowed to recall a Bond granted to his Wife bearing that he thought it convenient that they should live a part and therefore oblieged him to pay a Sum yearly for her Aliment albeit it bore also that he should never quarrel or recal the same as importing a Renunciation of that Priviledge February 6. 1666. Livingstoun contra Beg. Yea a Donation by a Husband to his Wife was found Revocked by a Posterior Right to his Children though it was not a pure Donation but in lieu of another Right and quoad excessum only seing it was notabilis excessus November 20. 1662. Children of Wolmet against Lady Wolmet And un Infeftment bearing Lands and a Miln was found Revockable as to the Miln it not being exprest in the Wifes Contract February 5. 1667. Countess of Home contra Hog This was extended to a Wifes accepting of an Infe ftment in satisfaction of her Contract February 12. 1663. Relict of George Morison contra his Heir It is also Revockable indirectly by the Husbands posterior Disposition of the Lands formerly Disponed to his Wife in Life-rent July 16. 1622. John Murray of Lochmaiben contra Scot of Hayning A Donation by Infeftment granted by a Man to his Wife beside her Contract found Revocked by an Annualrent out of these Lands granted to his Daughter pro tanto without mention of Revocation December 15. 1674. Mr. Robert Kinloch contra Raith It was also found effectually Revocked by the Husbands submitting of the Right of the Land wherein he had formerly gifted a Life-rent to his Wife and a Decreet Arbitral adjudging the same to another Nic. de Donat. inter virum uxorem Viscount of Annandail contra Scot. But Donations by a man to his Wife who had no former Provision nor Contract of Marriage found not Revockable being in satisfaction of the Terce due by the Marriage March 25. 1635. Laird of Louristoun contra Lady Dunipace The like November 22. 1664. Margaret Mcgill contra Ruthven of Gairn But where the Husband granted Infeftment of all that he then had there being no Contract of Marriage And thereafter a second Infeftment both Stante Matrimonio The first was sustained being in place of a Contract of Marriage but the second was found Revockable 23. of November 1664. Halyburtoun contra Porteous And a provision to a Wife having no Contract of Marriage was found Revockable in so far as it exceeded a Provision suitable to the Parties 27. of July 1677. Short and Burnet contra Murrays Yet the want of a Contract did not sustain a Donation by a Wife to her Husband to whom she assigned an Heretable Bond the Husband being naturally oblieged to provide for his Wife and not the Wife for her Husband December 15. 1676. Inglis of East-shield against Lowry of Blackwood And an Assignation to an Heritable Bond by a Wife to a third Party but to the Husbands behoove found Revockable by the Wife after the Husbands death even against the Husbands singular Successor for causes onerous the trust being proven by Write June 17. 1677. Margaret Pearson contra Mclane Yea a Donation by a Wife by Assignation of her former Joynture to her Husbands behoove found Revockable though there was no Contract unless the Husband had given a remuneratory provision January 22. 1673. Janet Watson contra Bruce And a Wifes consent to a Contract of Wodset of her Life-rent Lands with a back-tack to the Husband only found valid as to the Creditor but Revockable as to the Husband in relation to the back-tack declaring the same to belong to her for her Life-rent use that she might injoy the superplus more than the Annualrent June 28. 1673. Arnot contra Buta Donation by a Husband to his Wifes Children of a former Marriage was not found Revockable though done at his Wifes desire January 15. 1669. Hamiltoun contra Banes Nor by a Wife subscribing her Husbands Testament by which her Life-rent Lands were provided to her Daughter July 12. 1671. Marjory Murray contra Isobel Murray Such Donations are also annulled by the Wifes Adultery and Divorce As all Donations are Revockable for ingratitude Hope donatio inter virum uxorem Margaret Dowglas contra Aitoun A Bond conceived to a Man and Wife and her Heirs found a Donation by the Man whose Means it was presumed to be and Revockable by him after her death and a Tack taken by him to himself and his Wife in Life-rent was found Revockable by a posterior Tack thereof to himself and his brothers Son December 21. 1638 Laird of Craigmiller contra Relict of Gawin ãâã yet thereafter it was found in the same case January 30. 1639. that in respect the ãâã was set by a third person and that it did not appear to be by the Mans ãâã that the Back-tack to the Wife was not Revockable But a Donation betwixt Man and Wife altering their Contract of Marriage being done before the marriage it self was not found Revockable January 23. 1680. John Home contra John and George Homes yea where the Donation did bear date before the Marriage the Husbands Heir proving the Write antidated and that it was truely after the Marriage the Donation was therefore found Revockable July 24. 1667. Earl of Dumfermling contra Earl of Callender 15. To come to the Interest of the Husband and Wife after the Dissolution of the Marriage we must distinguish the Dissolution thereof which falls by death with in year and day from the solemnizing thereof and that which is Dissolved thereafter for by our Custome this is singular which is found no where else in the Neighbouring Nations that if the Marriage Dissolve within year and day after the Solemnizing thereof all things done in Contemplation of the Marriage become void and return to the Condition wherein they were before the same and so the Tocher returns back to the Wife or these from whom it came and she hath no Benefite or any Interest either in the Moveables or Heretables either by Law or Contract provided to her nor hath he any Interest in hers unless there were a living Child born which was heard cry or weep in which case Marriage hath the same effect as to all intents and purposes as if it indured beyond the year and this is extended to both the Marriage of Maids and Widows July 23. 1634. Maxwel contra Harestones And extended also to an Infeftment by a Husband to a Wife though it had no relation to the Marriage but was only presumed to be hoc intuitu November 16. 1633. Grant contra Grant and not only extended to the Wife and Husband and their Heirs but to any other person concerned Restitution being made hincinde of all done ãâã Matrimonii June 8. 1610. Laird of Caddel contra Elizabeth Ross yea a Disposition by a Father to a Son of his Estate in Contemplation of
28. 1632. Laird of Ludquharn contra Laird of Haddo this is presumed prasumptione juris so that the Narrative bearing another clause is not respected and therefore a Tutor acquiring a Discharge or Assignation of an Annualrent due by the Pupil to his Mother the same was found to accress to the Pupil though it bore love and favour and for the Tutors pains and discharging the Office March 15. 1629. White contra Dowglas Hope Tutors Duer contra Duer Neither hath the Tutor ordinarily Action against the Pupil till his Office end and then he may pursue as a stranger Hope de Minoribus Nasmith contra Nasmith likewise he may Apprize the Pupils Lands for his own debt the Pupil having other Tutors Hope de haeredibus White contra Calderwood So a Tutrix nominat sine qua non was admitted to pursue a Registration of her Contract of Marriage against her Pupil there being more Tutors nominat and she having renounced her Office though she had acted by subscribing deeds not hurtful to the Pupil July 30. 1625. Lady Stanyhill contra her Son 18. Tutors may only do necessar deeds for their Pupils either such as the Pupil is oblieged to do as payment of his debts which the Tutor may do willingly without compulsion of Law or otherwise deeds necessar for mannaging of his Estate and setting of his Lands or labouring the same uplifting his Rents and Annualrents uplifting the Sums that are not secured carrying on any Work which was left to the Pupil which cannot otherwise be disposed of but Tutors cannot sell the Lands or Heretable Rights of their Minors without an interveening Decreet of a Judge Tit. ff de rebus eorum qui sub tutela c. And any such Alienation is null without the Cognition aforesaid which must be by calling the Creditors of the Pupil and his nearest Friends to hear and see it found that there is a necessity to sell the whole or a part of his Heretable Rights and that the rate thereof may be determined in which it must appear that the Pupils debt cannot otherways be satisfied The Law allows the like in the case of the Pupils Aliment which cannot be afforded otherways Alienations so made are not easily reduceable or the Pupil or Minor restored against the same if the true cause hath been known to the Judge but not so if that hath been latent either dolo or lata culpa l. 11. Cod. de praed minor non alien And therefore a Tutors Assignation of his Sons and Pupils Mails and Duties for the Tutors own debt was found null by exception even at the Pupils Tennants Instance Spots Assignation Lands contra Lands yet a Tutors ratification of a reduceable Decreet given against his Minor was found valide though voluntar being in re antiqua Spots Tutors Earl of Kinghorn contra George Strang. 19. Tutors and Pro-tutors are lyable for Annualrents of their Pupils Moneys which they are oblieged to make profitable in so far as they are either liquid Sums that they had in specie or which the Tutors took up which was made up of their Pupils Moveables or Rents of Lands after a Term in Money Rent and a year in Victual from the Term of payment in so far as it is not imployed for their own use or profitably for paying of their Debts or Annualrents Alimenting them or other uses necessar according to the ancient Law of the Romans which oblieged the Tutor after he had the Money two Moneths in his hands but the Novel Constitutions Novel 72. cap. 6. de administrat pecun pupilli c. it is left to the Arbitriment of the Tutor either to keep the Pupils Money by him or to imploy it for profite but it is not so by our Custome Annualrent is due even after the Office is extinct by Marriage the Tutrix having continued her intromission though there were other Tutors July 17. 1630. Vallange contra Kincaid but not for Annual of the Pupils Annualrent though the Tutor received the same and they were great July 18. 1629. Nasmith contra Nasmith But it was lately found that a Tutor by his Office and Diligence was oblieged to lift and imploy the Pupils Annualrents of sums in secure hands once in his Tutory and so pay Annual for the Annualrents of his Pupils Sums omitted to be uplifted by him but only from the expiring of the Tutory January 27. 1665. Mr. William Kintor Advocat contra John Boid So a Tutor was found lyable for the Annualrent of his Pupils Annualrent within a year after his acceptance but not for the current Annualrent during the Tutory he leaving the same imployed for Annualrent at the Ishe thereof February 27. 1673. Isobel Dowglas contra John Gray A Tutors Heir being Minor found not lyable but only for Annual after the intenting of the Cause the pursuer being silent twenty five years February 22. 1634. Davidson contra Jack Neither was the Heir found lyable for Annualrent where the Father died during his Tutory Hope de haered Graham contra Crichtoun January 21. 1665. Kintor contra Boyd 20. Tutors are lyable for their Minors and must be conveened with them by their Creditors for their interest and are also decerned with them for their interest upon which Decreets personal execution is competent against Tutors for any deed prestable by them by their Office for example he may be compelled to receive a Vassal whom the Pupils Predecessour was oblieged to receive or grant a Tack of Lands or a Charter or Seasing where there hath been a Disposition before but in Decreets for payment of liquid Sums Execution cannot be made against the Means of Tutors unless they be specially decerned to make forth-coming so much of the Pupils Means as they have in their hands for satisfying of the Debt in whole or in part which though it be oft done by a second Process yet may be a distinct member of the first or by way of special Charge in the discussing of a Suspension raised by the Tutor against Creditors on that or other grounds But the Tutors oath was not sustained to prove against the Pupil an agreement made by the Defunct though there were concurrent probabilities and testificates December 11. 1664. Eleis contra Eleis yet the Tutors Oath was sustained against the Pupil as to the Tutors intromission in name of the Pupil that being factum proprium oblieging also himself and yet he was not holden as confest as being a party but was compelled to Depone by Caption June 27. 1665. Mr. Walter Cant contra James Loch 21. The last duty of Tutors is to make an accompt and to restore and refound wherein they will be lyable to accompt and satisfie for the Pupils whole Means and Estate not only for their Intromission but for their Omission and for such diligence as they use in their own Affairs which seems sufficient in Tutors Testamentar seing the Office is gratuitous and free and not sought by them but in Tutors of Law and
the Minors deed found void notwithstanding December 19. 1632. Maxwel contra Earl of Nithisdail but this was not extended to necessar Furnishing of Cloathes taken on without consent of Curatours which was sustained by reply February 5. 1631. John Inglis contra Executours of John Sharp 34. The Civil Law seems not to extend the consent of Curators as necessary to concur with the Minor making his latter Will but only to deeds among the living because Law hath rejected all ties and hinderances of full Liberty in Testaments of Defuncts in the disposal of their Goods and therefore if a Minor having Curators do in his Testament say quaestionem Curatoribus meis ãâã faciat eam nam ipse tractavi in that case Curatours are lyable for Restitution of what they have of the Minors Goods by Fraud but not for a compleat Diligence l. 20. § 1. ff de liberatione legata And by our Custome Minors having Curatours may Test without their consent and therefore a Minor making his Curator his Executour and universal Legatar though the Minor was with the Curator when he Tested and Died shortly after and his nearest Relations were not acquainted whom he had named in a former Testament it was sustained here no threats nor importunity was alledged November 30. 1680. Stevinson contra Allans There are other two Priviledges of Minors which cannot be so conveniently spoken to as in this place the one is that Minors are restored against Deeds done by them in their Minority to their Enorme Lesion The other is Minor non tenetur placitare super haereditate Paterna As to the first Minority and Lesion are the ordinary ground of Reduction but because they are facti and abide Probation they are not receivable by exception if he who pursues the Minor can instantly instruct his Pursuit but if he take a Term to prove the Minor may take the same Term to prove his Minority which doth not acknowledge the Libel or free the Pursuer from Probation thereof Or if the Minoritie be instantly verified as sometimes it is by sight of the Minors Person There is no difference as to the Restitution of Minors though the Deed be done with consent of Curators nor did it exclude a Minor because his pretended Curators had received the Money in question and so were liable to the Minor for misimploying it as behaving themselves as Curatours upon pretence that his Lesion could not be known till they were discust they not being in this Process July 2. 1667. Lord Blantyre contra Walkinshaw But this Remeid is not competent for every small Lesion but it must be Enorm which is in Arbitrio Judicis Neither is a Minor restored against Lesion which falls not by Levitie but by Accident as by Ship-wrack the Minor being a Trading Merchant Hope de Minoribus William Edgar contra Executours of Edward Edgar neither because he was bound conjunctly and severally for ware with another Merchant who was in society with him in Trading June 20. 1678. George Galbraith contra Patrick Lesly because Trading Merchants and others exercising Trade requiring peculiar skill capacity and understanding are held rather to design to deceive then to be deceived as was found in the case of a Nottar Publick July 14. 1636. Gardner contra Chalmers Neither was a Minor restored upon his judicial Confession upon Oath upon point of Fact and swearing never to come in the contrair November 28. 1626. Mr. Thomas Hope and Mr. Thomas Nicolson contra Mr. James Nicolson Neither was a Minor restored against his Promise upon Oath to quite twentie Chalder of Victual provided to him by his Contract of Marriage as not lesed by keeping his Oath which is conform to the Authentick Sacramenta puberum November 1626. Sir Robert Hepburn contra Sir John Scatoun And it was found relevant against Restitution of a Minor of a Bond granted for a Debt of his Fathers whom he Represented not that he swore to perform the same February 10. 1672. Mr. George Wauch contra Bailzie of Dunraget But a Minor hath not the priviledge to reduce a Disposition of Land without Authority of a Judge as in the case of Pupils unless he also alledge Lesion February 2. 1630. Sir John Hamiltoun contra John Sharp The like though the Minor had no Curatours December 13. 1666. Janet ãâã contra Stevenson Neither is Restitution competent unless Reduction be intented within the age of twenty five compleat for with us Majority comes at the age of twentie one compleat and there are four years allowed to Minors to intent Reductions which therefore are called Anni utiles Nicolson de Minoribus James Goodlet contra Doctor Austine and others Laird of Craigie contra Dunbar A Minor was restored against his Contract of Marriage wherein he was oblieged to Infeft his first born Son in Fee of his whole Estate which was very considerable having gotten but ten thousand Merks of Tocher March 7. 1623. Laird of Barganie contra his Son The like where a Minor getting but a thousand Merks of Tocher provided five thousand Merks to his Wifes Father in case of no Succession but not restored against that part of his Contract providing all his Means acquired and to be acquired in Liserent to his Wife June 4. 1632. Alexanderi Donaldson contra And a Minor Woman was restored against the Exorbitancies of her Contract of Marriage November 22. 1674. Margaret Mcgill contra Riven of Gairn but here she was only restored to a suitable Liferent but not against that provision in her Contract providing her Lands and Sums to the Heirs of the Marriage ãâã failzieing to the Mans Heirs The like as to the Heirs of a Woman who had Land worth twelve hundred Merks yearly the Husband being of a more honourable Birth Nicolson de Minoribus Slemen contra Ker. The like where the Wife Disponed her Lands to her Husband whose means were altogether unanswerable Spots Husband Fleming contra Mr. Robert Hog Minors are also restored against Judicial Acts to their Lesion as against a Decreet of Exoneration of his Tutors with concourse of his Curatours before the Lords in foro contradictorio December 1. 1638. William Stuart contra Robert Stuart Hope universal and lucrative Successour Knows contra Knows and Watson and against a Defence proponed by an Advocat without special mandat which did homologat a Deed in Minority February 14. 1677. Duke and Dutchess of Bucleuch contra Earl of Tweeadale In which case it was found that accepting an illiquid Right for a Liquid was no Enorm Lesion inferring Restitution But Restitution is excluded Si monor se majorem dixerit Nam deceptis non decipientibus jura subveniunt as where the Minors Bond bore expresly that he was Major and that the Creditor knew not he was Minor by his Aspect or otherways nor did fraudfully induce him to insert his Majority February 23. 1665. Kennedy of Achtifardel contra Weir It is also eleided if it be proven that the Deed in question was profitable as
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
been made thereon the time of the poinding neither when keeped on the Ground for the Masters Rent by his Servants seing they exprest not that cause nor craved not security therefore from the Poynder February 1. 1628. Laird of Halkertoun contra Kadie and Grieves But if it had been expresly for the Rents resting it would not infer Deforcement if such were truely resting Neither did resistance of poynding of Plough-Goods in Labouring time where there were other Goods sufficient infer Deforcement February last 1561. Abbot of Kilwinning contra Tennants stopping of poynding by the Master of the Groundor Landlord of an House for that years Rent infered not Deforcement December 7. 1630. Dick contra Lands or that he hindred entry unless there were special Warrant in the Letters to make open Doors 30. Contravention as it signifies any Act done against Lawborrows so it implys the Obligation of the Contraveener and the personal Right which the user of the Lawborrows hath thereby and likewise the Action by which it is pursued For the uptaking of all it must be considered what Lawborrows are which the word it self insinuats to be Caution found to do nothing but by order of Law for a Burrow or Burgh in our ancient Language is a Cautioner and Lawborrows is Caution to keep the Law the reason hereof is the safety and security of the people who in equity have no more then the Reparation of the Damnage they sustain through Delinquences or illegal Acts But to prevent such and terrifie evil doers a greater penalty then Reparation is appointed according to the Quality and Estate of the Injurer Par. 1593. cap. 166. The half of the Penalty is applyed to the Injured and the other half is Publick Par. 1581. cap. 117. By the Narrative of which Statute it is clear that before Lawborrows were granted only for safety against bodily harm in the persons of the Complainers yet for the reason therein expressed the same was extended that the Complainers their Wives Bairns ãâã and Servants shall be harmless and skaithless in their Bodies Lands Tacks Possessions Goods and Gear and no ways molested or troubled therein by the persons complained on nor no others of their causing sending hounding out ressetting command assistance and ratihabition whom they may stop or let directly or indirectly otherways then by order of Law or Justice By the same Statute it is also evident that Lawborrows are granted upon the supplication of parties fearing harm who without citing the other party but making Faith upon their Complaint have Letters of Horning summarly to Charge the party complained on to find Caution ut supra and if Caution be found the Action of Contravention doth proceed upon and conform to the Act of Caution but if obedience be not given the Complainer may proceed to Denunciation or Caption but the Contravention will proceed though there be no Caution found but only a Charge upon the Letters without Denunciation unless the Charge be suspended as uses to be done when the penalty charged for is exorbitant and not conform to the act of Parliament January 8. 1628. John Semple contra Cunninghame Contravention may proceed upon any Delinquence according to the Tenor of the Act of Caution or Letters of Lawborrows which though very comprehensive yet is not extended to Acts done without Order of Law being matters of inconsiderable moment as the Tilling up of some Furrows in a March the same being offered to be laid down and the Damnage to be repaired Nic. hic Nicolson contra Hay Neither is it sustained upon any illegal deed when the matter of Right was dubious as in matters of Molestation before the Cognition or before that the Marches be clear Spots contravention Laird of Balcaskie contra Florence Strang. Neither upon a deed done by a colourable Title though afterward reduced as entering in Possession by a null Decreet Hope hic George Moorhead contra Laird of Barskub Neither upon Pasturing upon Bounds contraverted or where there was no violence nor unlawfulness in Pasturage upon clear Marches July 14. 1626. Laird of Grange contra Lesly Neither upon a deed of Spuilzie against the pursuers Tennant not complaining though the Lawborrows bears Men-tennants and Servants to be harmless which was esteemed stilus curiae January 28. 1632. Grant contra Grant and February 9. 1633. Lindsay contra Dennistoun Neither was it sustained upon Deeds done by the Defenders Tennants without alledging Command or Ratihabition unless the Deeds be manifest or known to their Masters as in conveening dayly and cutting anothers Woods July 9. 1611. Vauns contra Laird of Balnagown Neither upon Deeds done by Servants without Warrand unless they be menial Servants Hope bic John Galbraith contra William Anderson Yet Contravention was sustained upon hurt done to the Pursuers servant though he was then Rebel being afterwards relaxed Hope Horning Bruce of Clackmannan contra Bruce It was also sustained upon attempts of injury though there was no hurt as a stroke on the Cloathes and one offer to strike with a Whinger December 21. 1609. Greenyards contra Clackmannan And also upon a violent troubling the Pursuer without Order of Law though without Damnage Spots hic Laird of Balcaskie contra Florence Strang. It is also sustained upon a Delinquence though there be another Action competent therefore as for Molestation November 29. 1609. Dundass contra Cuming of Ironside Or for violent Possession after Warning Hope de actionibus Cuthbert Cunninghame contra But if the other ordinar Action was insisted in and Decreet obtained Contravention also cannot be pursued though the other were offered to be renounced Hope contro Johnstoun contra Sir John Charters Contravention was elided by granting a Factory after the Deeds Lybelled to do the like reserving only Damnage and Interest February 19. 1633. Dennistoun contra Lindsay Contravention on several Deeds sustained separatim toties quoties And against many Contraveeners Contraveening in one Act but in such cases the Lords will modifie and lesten the Penalty within the Rate of the Act of Parliament Novemb. 29. ãâã Dundass contra Cuming of Ironside Nic. contro Sir John Scot contra Barns Contravention is not found pursuable before any inferiour Judge otherways the Decreet thereof will be null by exception July 6. 1611. Kennedy Taylzeor contra Kennedy of Garriehorn Yet it was sustained where the matter was small and the parties poor March 12. 1622. Blair contra Marshel In Contraventions the Kings Advocat must concur for the Kings Interest but he cannot insist alone as when the private party hath discharged the Deeds even after the intenting of the cause Hope entro Forrest contra Malcolme Turnbul TITLE X. Obligations Conventional by Promise Paction and Contract 1. The Original of Conventional Obligations 2. The Acts of the Will Desire Resolution and Ingagement and their Effects 3. Pollicitation or Offer and its Effects 4. Promise 5. Contracts in favours of third parties valid 6. Pactions and how Words are Obligatory 7. Naked Pactions 8.
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 ãâã ãâã ãâã ãâã ãâã 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
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
found in a Charge to the Cautioners behove against the Co-cautioner July 27. 1672. Joseph Brodie contra Alexander Keith June 28. 1665. Monteith contra Anderson A Cautioner in a Suspension of a Bond wherein there were five Cautioners being distrest and having payed and obtained Assignation from the Creditor was found to have access against the first four Cautioners allowing only his own fifth part Febr. 23. 1671. Arnold of Barncaple against Gordoun of Holm 97. As Caution so Oaths are accessory to all Promises Pactions and Contracts not these declaratory Oaths which are ordinary in the discussing of Rights whereby all persons are bound to declare the truth upon oath as witnesses or as parties against themselves in civil Causes but promissory Oaths whereby they promise to observe or fulfill any thing active or passive never to quarrel it concerning which Oaths there is no small matter of debate among Lawyers what effect they have all do agree that in so far as any promise can be effectual a promissory oath is valid and hath this much of advantage that the Creditor is the more secure because he may justly expect the Debitor will be more observant of his oath then of his ordinary paction seing the penalty of the violation of an oath deserves a more attrocious judgement than any other God being called as a Witness and Judge which effect it hath though adhibit to that which by the matter hath an anterior obligation as obligations betwixt Husband and Wife Parents and Children in these things in which they are mutually oblieged or where there hath preceded or is conjoined an obligator Contract which of it self is binding without an oath 2. All do also agree that Oaths interposed in things unlawful not only as to the manner but as to the matter are not obligator so no man justifieth Herod for taking John Baptists head without cause upon pretence of his oath 3. All do agree that in matters free and in our own power as Contracts are obligator so also are Oaths The question then remains Whether in acts civiliter inefficacious the interposition of an Oath can give efficacy or whether that which is done in debito modo becomes valid by an Oath to perform it or not to impunge it and if that efficacy will not only extend to the swearer but to his heirs or successors Of this there are multitudes of cases and examples debated among Civilians by the Civil Law naked Pactions are not efficacious to ground any Action upon quaeritur whether if the Paction be with an Oath the Creditor may not effectually pursue thereupon By Law likewayes the deeds of Minors having Curators not consenting are null but if the Minor swear not to quarrel them quid juris Minors laesed have by Law the benefit of restitution but if they do the deed upon oath to perform it or not to quarrel it whether if they pursue to reduce it will they be excluded by their Oath or if a Wife be oblieged personally for debt and swear to perform it or never to come in the contrair Whether yet she may defend her self with her priviledge or if a womans Land given her for security of her Tocher donatione propter nuptias be sold by her Husband with her consent which the Law declareth null Whether her oath interposed will validate it or if pactum Legis Commissoriae in pignoribus confirmed with an oath will be valid or if an oath for performance will exclude the common exceptions of fear force or fraud And innumerable such cases whereby positive Law prohibiteth any act to be done or declareth it void simply or void if it be not done in such a manner and with such solemnities For clearing of these and the like cases we are chiefly to consider quae sunt partes Judicis or what is the Judge his duty in deciding cases wherein oaths are interposed rather than what concerns the parties and the obligations upon their conscience by these oaths in foro poli and therefore we shall take up the matter distinctly in these ensuing points First if an Action be pursued upon a ground ineffectual in Law albeit the Defender hath interposed an oath never to come in the contrair yet that which would not be sustained by the Judge though the Defender should not appear or object which is ineffectual of it self in that case the interposition of an oath hath no effect as if by the Civil Law an Action were intented upon a promise or a naked paction with an oath interposed the Action would not be sustained albeit the Defender should not appear or appearing should not object that it were a naked paction Or if a Declarator should be intented to declare pactum legis commissoriae in pignoribus to be valid and effectual though it were lybelled that the other party did swear never to come in the contrair yet the Judge could not sustain such an Action nor generally can sustain any Action which is unjust or irrelevant albeit it should not be opposed but consented to simply or with an oath never to quarrel it because in such cases pactis privatorum non derogatur juri communi The consent or oath of no party can make that just which is unjust nor can make that sufficient or effectual that is deficient in its essentials as if any party should grant a Disposition of Lands or Annual-rents and declare that it should be effectual for poinding the ground without Infeftment and should swear never to come in the contrair thereof if thereupon the obtainer should pursue poinding of the ground the same could not be sustained because these Rights are defective in their essentials wanting Infeftment and yet in these cases if the party should object or any way hinder the effect of their oath they contraveen the same But the Judge not sustaining the same doth no wrong because his not sustaining proceeds upon a defect of an essential requisite and not because of any exception or objection of the party from this ground it is that if a Wife be pursued or charged upon a Bond for Debt subscribed by her bearing expresly her to be designed a Wife though it were condescended on that she made faith never to come in the contrair the Lords would not sustain the pursute or Charge because by the very Action it self it appeareth that the Summonds or Charges are irrelevant and contrair to Law which declareth a Wifes Bond for Debt ipso jure null and therefore though she may be faulty in suspending or hindering the performance of the ingagement of her oath the Lords do justly reject such an irrelevant Libel or Charge as they did in the case betwixt and Catharine Douglas Feb. 18. 1663. where her Band was suspended simpliciter as being expresly granted by a wife though she judicially made faith never to come in the contrair or if the husband should suspend and alledge that such an Obligation or Oath could not be effectual against his Goods or the person
of his Wife in his prejudice there could be neither wrong on his part nor on the Judges part 2. If either Action or Exception be founded upon that which is not defective in essentials but in circumstantials ordained and commanded by Law the defect thereof may be supplied by the other parties consent much more by their oath and in that case quae fieri non debent facta valent for every prohibition of Law doth not anull the deed done contrair thereto but infers the penalty of Law upon the doer as Tacks of Teinds are prohibit to be set by Prelates for longer then nineteen years Parl. 1617. cap. 4. Yet it was found that a Tack granted for a longer time was not thereby null Novemb. 9. 1624. Mr. Thomas Hope contra the Minister of Craighall So likewayes members of the Colledge of Justice are prohibite to buy Pleas yet the Right acquired thereto was not found null or Process refused thereupon but that it might be a ground of deprivation June 5. 1611. Adam Cunningham Advocat contra Maxwel of Drumcoultroun In like manner the solemnities of Marriages are prescribed in Law and all prohibit to proceed any other way so they are appointed to be publickly solemnized by a Minister and the consent of paretns are required yet the want of these will not anull the Marriage because it is a divine Obligation which cannot receive its essentials from positive Law or Statute Whence it is justly said Mult a impediunt Matrimonium contrahendum que non dirimunt Contractum It is not therefore the prohibition of Law that anulleth an Act but the Law must expresly anull it or at least declare such points as the essential requisites to such Deeds or Rights some Deeds are declared null ipso jure and others are only anullable ope exceptionis or by way of restitution or at least where something in fact must be alledged and proven which doth not appear by the Right or Deed it self and so belongeth not to the Judge to advert to but must be proponed by the party in these an oath interposed doth debar the swearer from proposing or making use of such exceptions and allegiances and therefore neither may the party justly propone the same nor the Judge justly sustain the same for there be many things of themselves relevant and competent in Law which yet may be excluded by a personal objection against the proponer for in many cases allegeances competent to parties may be renounced so that though they be relevant that personal objection will exclude the proponer but his Oath is much stronger then his Renunciation and therefore seing such points are not partes judicis nor consistent in any intrinsick nullity or defect though the Law allow or prescribe them yet it doth not mention or express that though the party in whose favours they are introduced renunce them simply or with an Oath that these shall be admitted and therefore they are justly to be repelled being in detrimentum animae of the proponer This ground solveth most of the cases before proponed for if a Minor pursue Restitution upon Minority and Laesion his Oath to perform or not to quarrel the deed in question excludes him both by the Civil Law and our Custome by the authentick sacramenta puberum spontefacta super contractibus rerum suarum non retractandis inviolabiliter custodiantur C. si adversus vend It was so decided in an obliegement by a Minor to quite twenty Chalders of Victual provided in his Contract of Marriage January 15. 1634. Sir Robert Hepburn contra Sir John Seatoun where it was found that the Oath was valide though not judicial The like was found that a Minor having given a Bond for his fathers Debt whom he represented not and being sworn not to come in the contrair the same was not reduced upon Minority and Laesion February 10. 1672. Mr. George Waugh contra Bailzie of Dunraget Upon this same ground a Minor having Curators not consenting swearing to perform his Obligation or never to come in the contrair his exception of its being null because it consists in Fact and must be proven that he was Minor and that he had Curators may justly be repelled and he excluded from proponing thereof in respect of his Oath seing it is not the part of the Judge to know or advert thereto but his Curators who have not sworn may yea must propone that nullity because they have not sworn On this ground likeways the exception or reason of Reduction upon force or fear is excluded if the party have sworn to perform or not quarrel the deed which is the sentence of the Canon Law not only as to Wifes consent to the alienation of Lands given to them donatione propter nuptias which is both null and presumed to be granted upon her fear or reverence of her Husband C. licet mulieris l. 6. de jure jurando C. cum continget de jure jurando whereby such consents and oaths being interposed are declared to be valide but generally that no deed having an oath interposed can be recalled upon an alledgeance of force and fear C. 3 4. de iis quae vim metumve albeit the Pope assumes to himself liberty to absolve from such oaths as are done upon fear yet they are declared of themselves to be valide which our Custome followeth and was so decided Parl. 1481. cap. 83. and was so decided by the Lords July 4. 1642. Agnes Grant contra Balvaird where a Wife was excluded from the Reduction of the alienation of her Liferent Lands super vi metu because she had judicially ratified the same and sworn never to come in the contrair neither was it respected that the Oath as well as the Disposition was by force and fear this is the great foundation of all publick Transactions betwixt different parties and Nations where ofttimes the one party is induced through fear to that which otherways they would not yeeld to and yet both parties acquiesce in the Religion of an Oath interposed So the Oath of Israel to the King of Babylon was binding upon them though thereby the people of God subjected themselves to a Heathen King and therefore they are accused by Jeremiah for breach thereof and likewise for breaking the Oath to their Servants whom they manumitted upon meer necessity for their defence From this reason it is that the exception or reason of Reduction upon deception Fraud or Circumvention is excluded if an Oath be interposed whereof we have the most eminent example of the Oath of the People of Israel to the Gibeonites who purposely deceived and circumveened them feigning themselves to be a people far off though they were of the Hivites whom Israel was commanded utterly to destroy against which judicial Precept they being induced through error and deceit to swear the Oath was binding on them and their posterity and was punished upon Saul for breach thereof From this instance we have occasion to return to the
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 ãâã where the distinction is betwixt Moveables Liferent Rights and Heretable Rights The first being carried by single Escheat the next by
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 ãâã 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
Acts either without the possessors consent or by their tollerance or tradition and delivery or by forsaking or relinquishing them so that in the matter of possession of Moveables there is little controversie 12. Secondly Possession of the Ground is also clear in many cases As First In Habitations whether in Caves Tents or proper Houses Next in Gardens Inclosures and all Plantations Thirdly In Fields by Pasturage or Tillage in so far as the Acts extend so far these all are most natural possessions But after that most ancient simplicity Rights and the ways of acquiring thereof were multiplied and therefore possession could not be intire but behoved to be divided amongst the several interests then did the difficulties arise as when one had the property a second the fruits a third the use a fourth the servitudes in some part a fifth the detention for security a sixth the custody or location and all these exercised either by the parties themselves their servants or Children in their power and their Procurators in their name Yea and by opposite and interrupting Acts many at once pretending to the same kinds and parts of possession 13. So then the third kind of Possession was when the Earth began to be divided by limits and bounds and to have common denominations then the possession of the whole was attained by exercising possessory Acts upon a part as he who possesseth a Field needs not go about it or touch every Turff of it by himself or his Cattel but by possessing a part unless there were contrary possessory Acts. So possession of the greater part of Lands contained in one Tenement was found sufficient to validat a base Infeftment as to the whole and to exclude a posterior publick Infeftment for removing the Tennents from a part of the Tenement though the base Infeftment had possession several years and had attained or pursued for no possession of these Tenements Spots removing Hunter contra Hardie observed by Dury January 14. 1630. The like of possession of a Tack of a part of Teinds in a Tack found sufficient to validat the Tack as to the whole Spots 1. possessione Lady Merchistoun contra Wrights-houses 14. Possession Civil is extended to uplifting of Mails and Duties which is sufficient to introduce and preserve property though the pasturage and tillage and all other natural deeds of possession be in others who are properly called possessors who hold and possess for themselves in so far as concern the excresce of the profits above the rent as to which they possess in name of their Masters and therefore this possession is partly naturral to the Master of the Ground and partly civil by their Tennants 15. Fifthly Possession is attained Symbolically where there is not use of the whole or a part but only of a Symbol or Token and this is when the thing to be possest is present as the civil possession by Infeftment by delivery of Earth and Stone upon the Ground of the Lands or by delivery of a parcel of Corns for a Stack or Field of Corn or some of a herd or Flock for the whole Flock being present in which the Symbols being also parts of the thing to be possest have some affinity to natural possessions Sixthly Civil Possession is by a Token or Symbole which is no part of the thing to be possest but is a Token to represent it as either having some resemblance with it as the delivery of a Copy or Scroll for an office or a penny for an Annualrent or otherways hath no resemblance but is a Token meerly suppositious to represent it as delivery of a Batton in Resignation or Delivery of a thing bought or sold by a wisp of Straw which ordinarly is in absence of the thing to be possessed 16. Seventhly Possession is attained or retained without Symbol and without Interposition of any person in our power or procurator but only by conjunction of Interest So when the property of Lands is granted to one and the Usufruct or Liferent to another or when the Liferent is reserved the possesssion of the Liferenter is held to be the possession of the Fiar as to all other third parties and Rights And a Husbands possession of Lands by himself or any deriving right from him is held to be the Wifes possession by her Liferent Infeftment The several kinds and degrees of possession being thus laid open it will be more easie to takeup the common notion and nature of it and it may be thus described 17. Possession is the holding or detaining of any thing by our selves or others for our use it is not every holding or detaining which makes possession for so Depositars detain but because it is not for their use they do not possess To Possession there must be an act of the body which is detention and holding and an act of the mind which is the inclination or affection to make use of the thing detained which being of the mind is not so easily perceiveable as that of the body but it is presumed whensoever the profite of the detainer may be to make use of the thing but where it may be wrong or hurtful it is not presumed As he who taketh another mans Horse by the Head or keepeth that which is waith or taketh in his hands the Money or Goods of another which if it were to make use of it would infer theft and therefore such detention is not presumed to be possession He also who detaineth or holdeth a thing not at all for his own use but for anothers who doth detain by him as by his Servant or Procurator doth not possess But otherways if he have no warrand from another but only intended or is oblieged that it shall be to the behove of another in that case he is possessor because the real Right is in him and there is upon him only an obligation to make it forthcoming to another And they who possess partly for themselves and partly for others as Tennants have possession in part 18. To come now to the Requisites for entering and beginning Possession there must be both the detention of the body and the detention of the mind for use for neither of the two alone can begin possession corporal possession alone can neither begin it nor continue it and if any act of the mind were enough possession would be very large and but imaginary but the manner of this seasure of possession to begin it is very diverse by all the several ways which are before set forth 19. Possession being once begun is continued not only by reiteration of possessory acts but even by the mind only though there be no outward acts exerced and the mind and affection to continue possession is always presumed unless the contrary appear so that if the thing once possessed be void as to outward acts yet it is held possest by the mind and any contrary act of others entering to that possession is unwarrantable and intrusion For as hath been
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-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
it was sufficient with Possession until the Solemnity of Instruments of Seasine was introduced and is still sufficient when Seasine is rightly adhibit for we follow not that subtility of annulling Deeds because they are sine causa but do esteem them as gratuitous Donations and therefore Narratives expressing the cause of the Disposition are never inquired in because though there were no cause the Disposition is good And albeit neither tenendas reddendo or the modus acquirendi be exprest yet if the property was the Disponers and he do but express the Disposition to be in Fee and Heretage it is valid for the reddendo is understood to be services accustomed in Ward-holdings and there will be carryed though not exprest all the parts and pertinents of the Fee And therefore any Disposition de presenti in Fee is valid as to that part of the Infeftment although the Disposition contained an obliegement to grant Charters yet the not granting there of doth not prejudge And if Charters be granted relative to prior obliegements yet the Charter is good without necessity to prove these Nor will it be sustained for the Superiour or any competitor that if the prior Obligation Disposition or Contract were produced it would be found conditional or have Clauses in favours of the Superiour or that Competitor whether generally or particularly alledged But if these were lost the Charter is sufficient and no more is understood to be in the real Right then what is contained in the Charter yea though the Charter bear according to the provisions and conditions contained in such a Contract Disposition or Bond which may import that the Superiour by granting the Charter without these hath not past from them and therefore he may insist upon them as personal obliegements and the Vassal will be oblieged to produce the same ad modum probationis by Exhibition as an incident diligence whereupon he must Depone whether he has them or had them since the Citation or did at any time fraudfully put them away But if without Fraud they be lost the Charter is sufficient and in no case doth require the production of any former ground Precepts of clare constat are also sufficient seing they contain a Precept to Infeft such a person as Vassal which implys the Dispositive Will of the Superiour and therefore is valid in place of a Charter from its date albeit it ãâã no effect against singular Successors as to that Vassals Predecessors Rights which must be instructed by the Rights themselves and not by the Superiours acknowledgement And for the same reason other Precepts of Seasine not relating to particular Charters or Seasines but either simple or bearing secundam cartam ãâã are sufficient although these Charters be never granted But there will be only understood a proper Ward-holding gratuitous without ãâã extending only to the Heirs of the Vassals Body but not reaching to ãâã or Ascendents unless the precept express or insinuat an onerous Title ãâã Vendition Excambion c. But since Write became to be an essential solemnity of Fees the Superiours ãâã Dispositive Act must be in Write but his preterit Declaratory Act acknowledging such a person and his Predecessors to be Vassals and have the Fee ãâã his obliegement to grant the Fee though never so express which relates but to a Disposition de futuro will not supply a Charter though clede with ãâã Possession or having Seasine by Instrument bearing to be propriis ãâã though by these the Superiour may be compelled to grant Charters ãâã and compleat bearing expresly all the ordinar Clauses in such Rights Yet ãâã ãâã cases Adminiculation of a Seasine will suffice as in the Liferents of ãâã being proportional or in very ancient Rights or where in Competition no better Right is shown Much less is it necessary to have formal and ample Charters in the best style upon Parchment in Latine sealed and subscribed albeit Vassals are oblieged to accept no other and the Nottars drawers of such Charters may be deposed and censured yet the Right will not be annulled or postponed to posterior more formal and solemn Rights for want of these formalities 15. The formal Tenor of Charters is different according to the several kinds on Infeftments whereof some are original Infeftments by which the Fee was first constitute and therefore are most plain and simple containing the dispositive Clauss relating or insinuating the Title or original of the Right if it be an original Charter from the King it begins with His Royal Title Carolus Dei Gratia c. And bears the consent of the Thesaurer and Commissioners for the Thesaury and bears a Narrative of the Motives inducing the King to grant the same and if it be Ward or Blench in Burgage or Mortification it bears Damus concedimus in perpetuum confirmamus But if it be a Feu Charter it bears Arendamus locamus in emfeuteosin dimittimus in perpetuum confirmamus And then follows the Clause Tenendas and the Clause Reddendo which if it be Ward bears Servitia debita If Blench the particular Blench Duty nomine Albae firmae If Feu the particular feu duty and sometimes the duplication thereof and the marriage of the Heir If Burgage it bears Servitia Burgalia If in Mortification it bears Preces supplicationes And ordinarly Warrandices which though very ample hath no effect for if the Right prove invalid there is no Action against the King who doth always Dispone plenissimo jure but periculo petentis especially when he Dispones as Supream Superiour by the Right of His Crown But if he dispone for a price or cause onerous as for sums of Money or by Excambion Lands acquired by him being no part of the Revenue of the Crown or annexed property in these utitur jure privato and his warrandice may have effect as to his privat Patrimony and not as to the Patrimony of the Crown Charters granted by the King of Fees by progress are either upon Resignation or by Confirmation or upon Apprizing or Adjudication which differ from original Charters in their several specialities as Chartersupon Resignation after the Dispositive Clause bear the conveyance that the Lands or others were resigned in the hands of His Majesty or His Commissioners by a Procuratory of Resignation a-part or in a Disposition or Contract expressing its date in favours of the Acquirer his Heirs or Assigneys whereupon Resignation being made in the Resigners Life the Charter will be granted to him or to his Heirs served generally or to his assigneys having right by Assignation to the Procuratory of Resignation Charters of Confirmation do deduce the Right to be confirmed which if it be a Charter a se bearing to be holden from the Disponer of the King and expressing the Tenendas reddendo The Kings Charter doth in the like style generally relate the Charter to be confirmed and then Ratifies Confirms and approves the same in all the Heads and Articles therein and
the Precept and exponing it if it be in Latine and then the words of the Precept should be Ingrossed Seventhly It bears the Superiour or the Bailzies delivering of Earth and Stone of the Land to the Vassal or to his Aucturney bearer of the Precept Or delivery of any other accustomed Symbol as a penny for an Annualrent a Net for Fishing a Clap for a Miln Eighthly It bears the Aucturneys requiring Instruments Ninthly It must bear that these things were done upon the ground of the Land or other Hereditament and the hour of the day before two Witnesses at the least required thereto And last The attest of the Nottar bearing the auctority of his Creation and that he was present with the Witnesses vidi scivi audivi that the things contained in the Instrument were so done as is exprest therein and that he took a Note thereof and thereupon drew a formal Instrument and insert the same in his Protocol whereunto are adjoyned his Sign his Motto contained in his Commission relating to his faithfulness and trust and his name or the initial Letters thereof 18. If any of these be omitted the Nottar may be exauctorat and punished by the Lords but the essentials are much sewer Yet the Seasine must contain the delivery of symbolical Posession by the Superior or his Bailzie to the Vassal or his Acturney upon the Ground of the Land or other Tenement in presence of the Nottar and Witnesses with the date and subscription of the Nottar But the delivery of the symbol of an Office having no particular place or ground is sufficient any where as a Batton for a Military Office or a scrol Book or Cape for a Civil Office But where the Fee hath a particular ground or place there it must be taken upon the ground and it will not be sufficient to be in view of the ground yet Law or Custom may otherways order in case of necessity As the Infeftments of Lands in Nova Scotia were appointed to be taken at the Castle-hill of Edinburgh And when Lands are rightly Unite or Erected in Barronries Seasine taken upon any part thereof sufficeth for the whole and without Union Seasine taken upon any part of the Lands will serve for all the Lands in the Infeftment lying contigue Craig relates that a Seasine was found null and false where it bore These things were done upon the ground of the Land albeit the parties had put of the ground of the Land on which they stood within their Shooes but were not upon the fixed ground thereof The Instrument of Seasine must be taken by a publick Nottar lawfully authorized at the least so holden and repute for though the Nottar be deprived it will not vitiat his Instruments taken bona fide by persons who knew not his deprivation till it be commonly known or Letters of publication intimat at the Mercat Cross. A Seasine was also found null because it wanted these words vidi scivi audivi Hope Seasine Primrose contra In ancient Rights or where there is not a more Solemn Infeftment Seasines have been sustained though with considerable defects as where the Seasine bore not delivery of Earth and Stone but only actual and real Seasine June 17. 1630. Earl of Wigtoun contra Earl of Cassils But not where the Seasine wanted delivery of Earth and Stone and the name of the Aucturney Hope Seasine Laird of Lie contra Earl of Callender A Seasine was sustained though it did not repeat the Precept and did not bear delivery of Earth and Stone but only of the ground of the Land yet was preferred to a posterior formal Seasine taken after the matter was Litigious October 23. 1680. Lady Lambertoun contra Laird of Polwart And a Seasine being the Title in a Reduction was sustained to infer Certification though it bore not delivery of Earth and Stone nor Instruments taken nor the hour nor being conform to the warrand but bearing only according to the custome in such cases but the defender thereafter having made a production of his Right certification was not granted contra non producta March 20. 1632. Laird of Lie and Stuart contra Earl of Lunderdail Aand Seasine of Land and a Miln was sustained bearing delivery of Earth and Stone of the Land and Milne with all solemnities requisite March 15. 1631. Laird of Swintoun contra Vassals of Dumfermling 19. Seasines being but the assertions of a Nottar do not prove or instruct a real Right unless they be astructed by a Warrant or Adminicle in write except that it be against Tenents at the instance of their Master who is known to be in Possession or that Prescription hath run by one or more subsequent Seasines and 40 years peaceable Possession And albeit the most ordinar warrant of Seasines be the Superiors Precept Ingrossed or related to in the Seasine yet after 40 years Possession there is no necessity to produce Precepts of Seasine Procuratories or Instruments of Resignation even in the Case of Reductions of Infeftments for want of these Parliament 1495 cap. 214. In which there is not required peaceable possession neither yet continued possession as is required in the Act of Prescription so that Interruptions as to this point will not alter the case but there is no necessity to produce any more for instructing an Infeftment but the Seasine and a warrant thereof such as a precept of Clare Constat a precept out of the Chanclery a disposition or contract of Alienation according as the Seasine doth relate to the one or the other As if the Seasine bear to proceed upon a precept contained in a Charter ter Disposition or Contract of Alienation these must be produced specifice as they are related not only passive to defend in Reductions but active as Titles of Reductions Declarators and all other Processes except against Tenents or naked Possessors or where prescription hath run because the Charwhen it is related to is a part of the Investiture making up the real Right and therefore as hath been now shown § 14. there is no necessity to produce a Disposition Contract of Alienation or Bond though the Charter relate thereto But if the Seasinebear to proceed upon a Precept contained in a Disposition Contract of Alienation or Bond then these are parts of the Infeftment and make up the real Right and so must be produced that the Defender may except or defend upon any clause therein contained in favours of himself his predecessors or authors unless the Infeftments be ancient and clede with long possession in which case it is like the Lords would extend the foresaid Statute and would sustain a Disposition Contract or Bond as a sufficient Adminicle of the Seasine though it related not thereto And albeit this Statute mentions only that Charter and Seasine shall be sufficient under which a disposition or Contract of Alienation must be comprehended when the Seasine is immediatly taken thereupon and not upon a formal Charter for then they
though not found in the Register were found sufficient against singular Successors purchasing thereafter the designe and tenor of this Statute would be eluded for the Statute bears if they be not Registrat which must import there being insert in the Register they are null and therefore though the Keeper of the Register hath attested such Seasines to be Registrate yet truly they are not Registrat And no purchaser could be secure by inspection of Registers if a false attest of a Clerk could exclude him who oftimes is insolvent But the not inserting of Seasines within Burgh in the Towns Books doth not annual them Seasins within Burgh being a total exception from the whole Act for Registration and the Statute being defective in that point the Lords did very fitly supply it by these two remeids that the Seasins within Burgh not being in the Towns Books should not be found null yet they might be reduced as latent and fraudulent And if the Town Clerks were put to find Caution for the damage real Rights within Burgh would be fully as secure as these without Burgh 23. Seasines as all other Instruments must have the attest and subscription of the Nottar giver thereof bearing the names and designations of the Witnesses insert whereof two will be sufficient because the Seasine must have a warrand by a subscribed Write by the author of the Infeftment and so needs not two Nottars and consequently requires not four Witnesses as other principal Writes of importance subscribed by Nottars July 5. 1680. Bishop of Aberdene contra Viscount of Kenmure Neither was a Seasine found void because taken in the night nothing of latency or fraud being qualified but Possession conform Margaret Arnot and Patton her Spouse contra Mr. Archibald Turner 24. If a Seasine be only extracted out of the Register of Seasines it will not be sufficient because that Register is only for publication As also the Register of Hornings and Inhibitions and not for conservation for the keeper of the Register doth not keep the principal Seasines but gives them back marked But if the principal Seasine marked as Registrat be wanting if the Nottar who gave it be alive he may renew it out of his Protocol and the keeper of the Register of seasines may attest it Registrat upon the day mentioned in the Register and therefore the Lords upon supplication ordains the keeper of a Register so to mark a seasine January 2. 1678. Sir Andrew Ramsay Supplicant 25. But if the Nottar who gave the seasine be dead there remains yet this remeid that a transumpt may be made upon production of the Protocol and Citation of the Author or his Heirs or any other party having interest which Transumpt is sufficient in place of the principal seasing and may bear both the Transumpt of the Protocol and of that part of the Register where the seasine was Registrate But the Instrument of a Clerk containing the Tenor of a seasine will not be sufficient without Citation of the parties If both the principal seasine and the protocol be wanting the Tenor of the seasine may be proven upon Citation of the same parties as in a Transumpt if there be sufficient adminicles in Write and Witnesses who saw the seasine wherein the Extract of the seasine out of the Register is a good Adminicle Seasines taken out of the Towns Books not by the Town Clerk who gave the seasine but by his successor will not serve for a principal seasine the Towns Book being but the Protocal of the Town Clerk and therefore either must the Towns Book be produced that the Seasine may be transumed or Commission granted for inspection or collation which being returned was found to suffice as a Transumpt February 11. 1681. Francis Irving contra Corsan 26. Infeftments do sometimes expresse the meithes or marches of the Lands and Tenements which thence is called a bounding Infeftment giving right to all within the bounds if the giver of the Charter had right or if the Vassal have by that Infeftment had peaceable Possession till prescription otherways bounding Charters prejudge not Par. 1592. cap. 136. Yet prescription will adject that which is within the bounding to another Tenement which will not be elided by possessing the major part of that Tenement But no prescription can give right to what is without the bounding as part and pertinent Novemb. 14. 1671. Walter Young contra Bailzie Carmichael But where there is no bounding possession clears the parts and pertinents of every Tenement and in competition where any ground is claimed as part and pertinent of several Tenements witnesses are allowed to either party for proving the Possession and interruptions unless it be alledged that that ground is separ ãâã tenementum having a distinct Infeftment of it self which will exclude the alledgeance of part and pertinent if the several Infeftments be not excluded by prescription as was found in the said case Young contra Carmichael But though the one Infeftment contain the ground in question per expressum in the enumeration of the parts of a Barronry or Tenement And though the other Infeftment contain no enumeration or in the enumeration mention not the ground in question but the same is alledged to be part and pertinent comprehended under the common Designation or under some of the parts enumerat if both flow from one common author as original Rights the first is preferable otherways both will be allowed Witnesses for proving Possession and interruption in paricasu aut dubio the express Infeftment will be preferable 27. But the main question is here concerning Infeftments holden of Subjects not being past upon the granters resignation by the Superior or the Superiors Confirmation or by his obedience upon Decreets of Appryzing or Adjudications which therefore are called base Infeftments and private Infeftments because they proceed in a more private and ignoble way being done by the granter and receiver thereof without the interposition of the Superiour The doubt is whether such be compleat real rights carrying the property of the ground by the Charter and Seasine only or not until possession of the Hereditament be obtained The ground of this distinction betwixt Infeftments and of the doubt as to base Infeftments is from the Act of Parliament 1540. cap. 105. Whereby it is clear First Before that Act Infeftments holden of the Disponer without Resignation or Confirmation were valid without possession and preferable to all posterior Infeftments though proceeding upon Resignation or by Confirmation for it is for remeid of this that this Statute is enacted Secondly By the Letter of this Statute posterior Infeftments upon Resignation or by Confirmation are only preferred to prior private Infeftments when the obtainer of the posterior Infeftment brooks the Lands peaceably by Labouring Manuring and uptaking of the Mails Profits and Duties and so are known Heretable Possessors thereof year and day And when such Infeftments are for Causes onerous or do contain or import warrandice neither is there
possession as a base Infeftment by Fathers to their Children was not sustained by the Fathers possession whose Liferent was reserved therein June 26. 1634. Dury contra Bruce But a posterior base Infeftment to the Wife was preferred in this case as being cled with the Husbands possession though common author to both the Son and Wife The like of a base Infeftment granted by a Goodsire to his Oy reserving the Goodsires Liferent July 3. 1624. Earl of Annandale contra Johnstoun And an Infeftment by a Father to his Son was not found cled with possession by the Fathers possession though he had a Factory from the Son but it was not alledged that the Father had granted Discharges expresly relating to the Factory July 10. 1669. Gardner contra Colvil Yet in the competition of two base Infeftments the former being granted to a stranger for relief of Caution and the latter granted to a Son and appearand Heir for relief of his Caution exceeding the value of the Lands the Sons base Infeftment though posterior having first attained possession and being without all suspition of Simulation was preferred And it was not found that Infeftments for relief were in the same case with Warrandice Lands where the possession of the principal Lands is fictione juris a possession of the Warrandice Lands These Infeftments being less subject to fraud or uncertainty then Infeftments for relief which relate to personal debts and oftimes generally to all debts or Cautionries contracted or to be contracted which debts may be retired and keeped up and made use of by the Infeftment for relief June 26. 1677. Mr. John Inglis contra Tennents of Eastbarns Infeftments base to Wives not being upon their Contracts of Marriage or in place thereof are not holden as cled with Possession by the Husbands Possession 28. Infeftments by Confirmation do not only require a Charter from the Disponer bearing the Lands to be holden of the Superiour and Seasine thereupon but require also the Superiours Confirmation till which it is no real Right but null but whensoever the Confirmation is added the Right becomes valid from the date of the Infeftment Confirmed as to the right of property and as to the Superiours Casualities and therefore an Infeftment ase not confirmed was found null by exception though cled with some years possession December 4. 1623. Patton contra Stuart and found null though the Confirmation was past the Privy Seal Hope Confirmation Hunter contra Dalgleish And also found null in an Annualrent holden from the Disponer not Confirmed Hope Confirmation Lord Balmerino contra Coatfield But if there were any mid impediment betwixt the Charter Confirmed and the Confirmation it excludeth the Confirmation and whole right as an Appryzing and Infeftment But Confirmation of a right not bearing to be holden of the Superiour but of the Vastal makes it not a publick Infeftment nor takes it away the Superiours ordinary Casualities as Ward but only Recognition and Forefaulture Hope Confirmation Lady Cathcart contra Vassals of Cathcart November 17. 1627. Laird of Clackmannan contra Balnamoon Hence it is that because Confirmation constitutes Rights holden of the Superiour that the first Confirmation makes the first Right though it confirm a posterior Infeftment from the Vassal as is clearly determined in the case of double Confirmations holden of the King Par. 1578. cap. 66. which is not introduced but declared by that Act and holdeth alike in other Confirmations It doth of times fall to be doubtful whether a Confirmation makes an Infeftment publick or not when Seasine is taken upon a precept of Seasine in a Disposition Which Disposition contains obliegments for Infeftment de se ase by Confirmation But the precept of Seasine relates not specially to either obliegement and Seasine is taken thereupon and is afterward confirmed The question comes whether this be only a Confirmation of a base Infeftment to exclude Forefaulture or Recognition or if it doth make the Infeftment publick it is generally constructed as a publick Infeftment as was found July 5. 1680. Bishop of Aberdeen contra Viscount of Kenmure 29. Infeftments upon Appryzing or Adjudication when formally perfected do require Charters to be granted by the Superiours of the Appryzed Lands or other real Rights the Tenor whereof is already set down in this Title and Precepts and Seasines thereupon which have little peculiar differing from other Infeftments as to their Tenors and Effects but that their reddendo is ordinarly general when the Appryzer or Adjudger cannot prove or instruct the Tenor of his authors Right and therefore do bear such duties and services as were contained in the Authors Rights which the Superiour may be charged to renew and make special so soon as the Authors Rights are produced and if they be not so renewed they are understood as Ward-holdings But for Renovation thereof the Appryzer or Adjudger will get Letters of Horning summarly upon the allowance of the Appryzing or Adjudication which will not be excluded although the Superiour have already granted Infeftments in general terms as aforesaid but he must renew the same according to the special Tenor of the Authors Right produced and that without any new composition yea the Appryzers Heirs upon supplication will obtain Letters of Horning summarly for renewing the same and so will his singular Successors but they must pay a years Rent for their Entry whether their Title be Appryzing or Adjudication against the former Appryzer or Adjudger in wich case he may make use of Letters of Horning upon the allowance of his own Appryzing and though his Title be a voluntary Disposition he will get Letters of Horning as succeeding in the place of the former Appryzer or Adjudger to renew and make special the former Infeftment to his Author upon payment of a years duty But Appryzing and Adjudications being legal Dispositions and conveyances of the Authors Infeftment we shall say no further of them in this place but leave them to the Title twenty four where they are considered amongst Dispositions We shall only add here that before the year 1624. Appryzings were left at the great Seal by warrant from the Lords whence Precepts were issued thereupon against the Superiours to Infeft which if they obeyed not Charters were granted by the King to supply their Vice but since they are retained by the Appryzer and he may have Letters of Horning summarly Charging the Superiours to grant Charters and Precepts of Seasine as is aforesaid 30. This also is singular in Appryzings and Adjudications that a real Right of Fee is constitute thereby by a Charge of Horning against the Superiour without Charter or Seasine For such Appryzings or Adjudications are declared effectual by the Act of Parliament 1661. cap. 62. ordering the payment of debts betwixt Creditor and Debitor For after that Charge no Infeftment upon voluntary Disposition or upon any other Appryzing or Adjudication can be granted by the Superiour prefering any other Vassal to the Appryzer or Adjudger whom he
in the Superiours hands but if within the half they are not null as to the Vassal but are null as to the Superiour and exclude him from no Casualities of his Superiority as Ward c. But as the half may be sub-sett so any other right less then the value of the half is sustained as an Infeftment of warrandice March 6. 1611. Cathcart contra Campbel The like holds of Infeftments of Liferent but if the Disposition or Infeftment be granted to the Vassals appearand Heir in linea recta it infers not Recognition be-because the Superiour is not prejudged by change of his Vassal but recognition was found incurred by a Disposition and Infeftment to the Vassals Brother though his appearand Heir for the time seing there remained hope of issue in the Disponer and so his Brother was not alioqui successurus Spots recognition Advocat and his Son contra the Earl of Cassils and Collane Feus of Ward-lands granted by the Kings Ward-vassals after the Act of Parliament 1457. and before the Act of Parliament 1633. were found not only to be free from the ward-liferent-escheat or recognition of the Kings Vassals but also that the Sub-vassals Feu did not fall by his Superiour the Kings Vassals forefaulture because the Act of Parliament expresseth a Confirmation of such Feus which therefore needs not be past in Exchequer without which there is no doubt but Ward and Non-entry are excluded And by a Confirmation in Exchequer Forefaulture would be excluded without question even after the Act of Parliament 1633. and therefore the ratification and approbation of Feus by the Act 1457. when it was in vigour must also secure against Forefaulture of the granter of the Feu as was found February 12. 1674. and January 23. 1680. Marquess of Huntly contra Gordoun of Cairnborrow whose Feu being granted after the Act of Parliament 1457. and before the Act 1606. was sustained against a Donatar of his Superiours Forefaulture The like though the Feu was renewed upon Resignation in favorem not being ad remanentiam November 16. 1680. Campbel of Silver-craigs contra Laird of Achinbreck and Earl of Argyle 33. Infeftments blensh are such whose reddendo is a small elusory Rent as being rather an acknowledgement of then prosite to the Superiour and therefore ordinarily it beareth si petatur tantum as a Rose penny Money or the like and these are not counted blensh Rights unless they bear in name of blensh Ferm or if they bear not si petatur or if it be a yearly growth or service it is not due and may not be demanded at any time unless it be demanded within the year at the Term as a Stone of Wax or a Pound of Pepper February 16. 1627. Lord Semple contra Blair Where the like is observed to have been before June 18. 1611. Bishop of St. Andrews contra Galloway The like found where the reddendo bore si petatur tantum June 15. 1611. Bishop of St. Andrews contra Tersons So Blensh Duties of Lands holden of the King or Prince are declared only due if they be asked yearly and no price can be put thereupon by the Exchequer Parliament 1606. cap. 14. Yet seing by Act of Parliament the King is not to be prejudged by neglect of his Officers who ought yearly to call for his Blensh Duties whereof many are considerable therefore the Exchequer continues to exact the Kings Blensh Duties though not demanded within the year There is another part of the Act excluding all Liquidations of Blensh Duties in specie which therefore should be so exacted though not within the year unless the Vassals voluntarly offer a price in these Blensh Ferms there is no ward and marriage befalling to the Superiour in which it differs mainly from ward 34. Infeftments Feu are like to the Emphyteosis in the Civil Law which was a kind of Location having in it a pension as the hyre with a condition of Planting and Pollicy for such were commonly granted of Barren Grounds and therefore it retains still that name also and is accounted and called an Assidation or Location in our Law But because such cannot be Hereditary and perpetual all Rentals and Tacks necessarly requiring an Ish therefore these Feu-holdings partake both of Infeftments as passing by Seasing to Heirs for ever and of Locations as having a Pension or Rent for their reddendo and are allowed to be perpetual for the increase of Planting and Pollicy 35. In what cases Feus are allowed of Ward-lands hath been now shown in other cases they are ordinarly allowed where they are not prohibit so we shall only need to speak of cases wherein they are prohibit and void and that is first In the Patrimony of the Crown which is annexed thereto and cannot be set Feu by the King without consent of Parliament by their Act of Dissolution bearing great seen and reasonable Causes of the Realm by Sentence and Decreet of the whole Parliament But Ratifications which pass of course in Parliament without report from the Articles will not supply the dissolution of the annexed property or validat Infeftments thereof even though the Ratification bear a Dissolution Upon which ground the Earl of Mortouns Right to the Earledome of Orkney was reduced February 25. 1670. Kings Advocat contra Earl of Mortoun Neither can the annexed property be disponed by the King but only in Feu after the Act of Parliament 1597. cap. 234. And all Infeftments Tacks Pensions Gifts Discharges granted before lawful Dissolution in Parliament or after Dissolution yet contrary to any of the conditions of the same are declared null of the Law by Action or Exception as well as to by gones as in time coming Par. 1597. cap. 236. Par. 1455. cap. 41. which is confirmed and extended to Feus not only to be granted of Lands but to Feus granted of the Feu-Ferm-Duties which was a device invented to elude the Law Par. 1597. cap. 239. 36. Secondly Feus of the annexed property after Dissolution may not be set with diminution of the Rental the Feu-duty not being within the new retoured Duty Par 1584. cap. 6. And that it may appear whether the Rental be diminished or not before they pass the Seals they must be presented to the Thesaurer and Comptroller and registrate in his Register and the Signature subscribed by him otherways they are null Par. 1592. cap. 127. And such Feus set without consent of the Comptroller by his subscription Registrat in his Register are again declared null Par. 1593. cap. 171. The Comptrollers Office hath been of a long time adjoyned to and in the same Commission with the Thesaurers Office or Commission of the Thesaury What Lands and others are annexed to the Crown appeareth by the several Acts of Parliament made thereanent consisting mainly of forefaulted Estates and Kirklands after the abolishing of the Popish Clergy which because they were presumed to have been most part mortified by the Kings of Scotland therefore the intent of their granting ceassing by
the abolishing of Popery they return to the Crown as the Narrative of the Act of annexation of the temporality of Benefices Par. 1587. cap. 29. bears and therefore Benefices of Laick Patronage as having proceeded from these Patrons are excepted by the said Act and though after the restitution of Bishops and their Chapters the Act of Annexation in so far as concerned their Lands was rescinded Par. 1606. cap. 6. Yet Bishops being abolished Par. 1640. cap. 6. their Lands were again annexed to the Crown Par. 1649. cap. whereby all Erection of Kirk-lands in temporal Barronies or Lordships by which the King interposeth any person betwixt himself and these who were formerly Vassals of Kirkmen are prohibit and declared null this Act is rescinded in the general Act rescissory 1661. cap. 15. The annexed property after Dissolution may not be granted in ward or blensh except upon Excambion for as good Lands Par. 1597. cap. 234. 37. Feus of Kirk lands by Prelats or other beneficed persons being granted by consent of their Chapters with all requisite Solemnities were esteemed Legal Securities without any particular Confirmation by the King or Pope there being no Statute nor Constitution obliging the Subjects thereto and in case any Confirmation had been requisite the consent of the Prince under his proper Seal and Subscription was sufficient Par. 1593. cap. 187. Yet it was the Custome that the Kings or Popes Authority was interposed to all Feus of Kirk-lands therefore all Feus not Confirmed by the King or Pope before the 8. of March 1558. or being thereafter not Confirmed by the King are declared null by Exception Par. 1584. cap. 7. The Reason hereof was because in March 1558. the Reformation of Religion began to be publickly professed in Scotland and the beneficed persons became hopeless to preserve their rights of their Kirk Lands and therefore endeavoured to dilapidat the same But this was found not to extend to an Infeftment of an Office as the Office of Forrestrie though it had Lands annexed thereto and a threave of Corn out of every Husband Land of the Abbacy seing the Statute mentioned only Feus of Lands And this was but like a Thirlage 20. of Ianuary 1666. Lord Renton contra Feuers of ãâã It is also declared in the 7. Act Par. 1594. that the old Possessors were to have their Confirmation for payment of the quadruple of their silver rent or the double of their ferm Providing they sought the same within a Year after the publication of that Act otherwayes they were to pay the eight fold of the Silver rent and the triple of the Ferm and the King was thereby obliged to grant Confirmation to the old Possessors upon these terms and being so Confirmed the same could not be questioned upon aleadged Dimunition of the Rental or Conversion in monie or any other cause of Nullity Invalidity or Lesion or by any Law Canon or Statute except Improbation only And it was declared that Confirmations by the King of Posterior Feus should not perjudge the Anterior Feus granted by Prelates and their Convents with their common Seals and Subscriptions at any time being granted with consent of the Kings Predecessors under their Privy Seal though without farder Confirmation by the Kings or Popes Par. 1593. cap. 187. The Reason hereof was because in the time of the Reformation most of the Evidents of Kirk Lands were destroyed And therefore the Ancient Possessors were presumed by their very Possessions to have Right And for clearing who were the Ancient Possessors and what were Kirk Lands it is declared by Act of Sederunt 16. of December 1612. that ten years Possossion before the Reformation or thirty years Possession thereafter but interruption should be sufficient to stand for a Right of Kirk-lands the same being possest as such and Feu dutie being payed to Kirkmen before the Reformation or to the King or others having Right from them after the Reformation therefore it was so decided 5. of July 1626. Laird of Kerse contra Minister of Alva though much stronger probation of being part of a temporal Barronie for longer time was alledged in the contrary Hope Earl of Home contra Earl of Balcleugh Spots Kirkmen Mr. John Hamiltone Minister at Linton contra John Tweedie Secondly Feus granted by Prelats were null Except they were expede by the consent of their Chapters or Convents Par. 1593. cap. 187. Thirdly Feus granted by the beneficed Persons as of themselves they ought to have been without diminution of the Rental seeing the Property thereof was mortified to the Kirk and the incumbents were but as Liferenters Administrators and Tutors it was also expresly declared and statute that any diminution of the Rental or change of Victual for Money or any other Disposition making the Benefice in a worse Estate then at the Kirk-mens entrie should be null Par. 1585. cap. 11. 38. Infeftments in Burgages are these which are granted to the Burghs by the King as the common Lands or other rights of the Incorporation and that for Burgal Service in Watching and Warding within their Burghs c. These can have no Casualities because Incorporations die not and so their Land can never fall in Ward or in Non-entrie These Infeftments in Burgage are held by the Incorporation immediately of the King for Burgal service Watching and Warding within Burgh c. And the particular persons Infeft are the Kings immediate Vassals and the Bailies of the Burgh are the Kings Bailies And to the effect that such Infeftments may be known it is declared that all Seasines of Burgage Lands shall only be given by the Bailzie and common Clerk thereof otherwayes the famine is declared null which seems to have given the rise to the exception in the Act of Parliament anent Registration of Seasins that it should not extend to Seasins within Burgh Par. 1567. cap. 27. 39. Infeftments of mortisied Lands are these which are granted to the Kirk or other Incorporation having no other Reddendo then Prayers and Supplications and the like Such were the Mortifications of the kirk-Kirk-lands granted by the King to Kirk-men or granted by other privat men to the Provost and Prebendars of Colledge Kirks founded for Singing Or to Chaplains Preceptors or Alterages in which the Patronage remained in the Mortifiers 40. Of all these Mortifications there remains nothing now except the Benefices of Bishops Deans and Chapters and the Manses and Gleibs of Ministers which are rather Allodial then Feudal having no holding Reddendo or Renovatione Yet are esteemed as holden of the King in Mortification And therefore the Liferent of the Incumbent by being year and day at the Horn falls to the King Manses and Gleibs did belong to Parsons Viccars and other Kirk-men before the Reformation after which they were prohibited to set the same Feu or in long Tack without the Royall assent and the Ministers were ordained to have the principall Manse of the Parson or Viccar or so much thereof as should be found sufficient Whither
Solemnities requisite in Infeftments there uses to be many Clauses insert therein all which we cannot follow but shall insist in the most ordinar and and important These are Union Erection Warrandice Reservations Provisions Conditions and Clauses irritant 44. Union is the Conjunction or Incorporation of Lands or Tenements lying discontigue or several kindes unto one Tenement that one Seasine may suffice for them all in which there is sometimes exprest a special place where Seasine should be taken and when that is not Seasine upon any part is sufficient for the whole Lands lying contiguous are naturally Unite and needs no Union so that Seasine taken upon any of them extendeth to the whole But where they ly discontiguous other Tenements being interjected there must be Seasine taken upon every discontiguous Tenement which must be all particularly so exprest in the Instrument of Seasin whereof one will serve for all the Tenements or otherways when they are Tenements of several kinds as Lands Milns Fortalices and Fishing all which are several kinds of Tenements and require several Seasines and pass by several symbols or tokens as Lands by Earth and Stone Milns by the Clap Fortalices by the Entry at the Gates and inclosing the person possest and excluding the granter of the Possession solemnly conform to the Charter or Precept Union can be Constitute originally by no other then the Soveraign Authority conceding the same January 16. 1623. Mr. Hendry Aikin contra Greenlaw Or Confirming the same January 16. 1623. Aikin contra Stuart And therefore Union being Constitute by a Subject not having the same from the King was found null by Exception at the instance of the Possessors though pretending no Right December 16. 1628. Lady Borthwick contra Scot of Goldylands And when there is a place for the Seasine of the Union a Seasine taken elsewhere reacheth none of the Lands lying discontigue March 19. 1636. Lady Dunipace contra Laird of But if the Lands united by the King be Disponed wholly together by the Vassal to others Subalternly Infeft the Union stands valid July 12. 1626. Stuart and Dowglas contra Cranstoun Home repeated Jan. 5. 1627. which for the same reason ought to be extended to Subaltern Infeftments of an annualrent of a Barrony or United Tenement which was found to extend to a Miln and to Lands lying discontigue though not taken in the place designed in the Union Spots Executors Lady Ednem contra Tennents of Ednem 45. Erection is when Lands are not only Unite in one Tenement but are Erected into the dignity of a Barrony which comprehendeth Lordship Earldom c. All which are more noble Titles of a Barrony having the like seudal Effects and whensoever the Tenements are granted as a Barrony Union is comprehended as the lesser Degree though not exprest and therefore one Seasine carryeth the whole Barrony and all Milns and Fortalices thereupon and fishing adjacent thereto Erections can be only granted by the Soveraign Authority and are not Communicable by the Subaltern Infeftments though the Union implyed therein may be Communicat Erection was found to be instructed by the Kings Confirmation of a Charter Designing the Lands a Barrony though it was not a Barrony before but the half of a Barrony wherein the Barron Infeft his Son in Libera Baronia which Infeftment being Confirmed by the King did Constitute it a full Barrony whereby an Infeftment of annualrent taken upon a part of the Land affected the whole November 16. 1630. Laird of Clackmanan contra Alardice Erections of Kirklands in Temporal Barronies or Lordships whereby the Lords of Erection were interjected betwixt the King and the Feuars are prohibite Par. 1592. cap. 119. and Par. 1594. cap. 195. for all these Lands are annexed to the Crown Par. 1587. cap. 29. and Par. 1633. cap. 10. The Reason whereof is evident that such Erections are prejudicial both to the King who loseth his Casualities of the Feuars and to the People who must accept another Superiour in stead of the King and though they had formerly but Subjects to their Superiours yet Church-men were much more easy then secular persons as requiring little service and being ashamed to demand rigorous Rates but any man may obtain the Lands he hath in property holden mediatly of the King which were Kirk-lands Erected in any dignity the King pleaseth to grant There are many exceptions in the Acts of Annexation of the Temporality of kirk-Kirk-lands and in the Acts against Erections by which the Kirk-land excepted are validly Erected and all the Erections are so far allowed as to give the Lords of Erection right to the feu-duties or fruits of the property of Kirk-lands feued till they be redeemed by payment of ten per cent and the Infeftments granted to the Vassals medio tempore are valid but the Casualities ought still to belong to the King It hath been sometimes questioned whether the Union and Erection of Lands be dissolved and lost by an Infeftment of a part thereof from the Vassal holden of the Superiour by Resignation or Confirmation Craig l. 2. Dieges 7. is for the affirmative confirmed by the resemblance of a Sheaf of Arrows bound with one Ligament for if one Arrow be pulled out all become louse and so the Union of the whole is dissolved unless the Superiour give the new Infeftment but prejudice of the rest But though such cases frequently occur whereby Infeftments of discontiguous Lands would only be valid as to the contiguous Lands upon which they were taken yet in no competition or other Process hath it been observed by any to be drawn in question or decided so that we have ever rested in the Negative and the consequence from that resemblance is not sufficient But on the contrary he who unites many Discontiguous Lands unites every part of them to every part so that the taking off of one part dissolves only it self the rest remaining unite But Union or Erection doth not change the Jurisdiction of the Lands unite as to the Shires and Bailziries where they naturally ly Vide Tit. Confiscatione § Horning Barronies and United Tenements when they are originally granted ought to express the several Tenements according to their proper Designations and so expresly Unite them But when these are acknowledged to have been Baronies or otherways Unite or are named or defigned as such by these who have power to Unite then the common Name of the United Barony or Tenement is sufficient to carry all that is holden and repute as part and pertinents thereof which was extended to Lands as parts of a common Designation though some particulars were named and the Lands in question had also proper names and were exprest in the ancient Infeftments the right in question being an Appryzing March 23. 1622. Gallowsheils contra Lord Borthwick Union and Erection are as qualities of the real Right and pass unto singular Successors as is before exprest 46. Warrandice is either real when Infeftments is given of one Tenement in security of
is not known And if the Warrandice be not absolute the Purchasers hazard was the greater But in Warrandice of personal or redeemable Rights the matter is ordinarly liquid and there is no design of hazard but an absolute relief But Warrandice hath no effect where there is Collusion by being holden as confest Nicol de evictione Aikenhead contra Blackwood The like was found by suppressing the Warranders Right and receiving considerable Sums therefore whereby the Right warranted fell in consequence February 18. 1679. Laird of Wedderburn contra Sir Robert Sinclar March 3. 1629. Murray contra Lord Yester Neither where Eviction falls through default of the party warranted when having a Disposition of Ward-lands with double Infeftment he infeft himself base without the Superiors consent and thereby the Lands recognosced February 1. 1610. Maxwel contra Mowbrey Neither inferred by the Forefaulture of the Disponers apparent Heir seeing the Fiar omitted to obtain the Kings Confirmation which would have excluded the Forefaulture Hope Warrandice Hamilton contra Laird of Nidderie It is not so clear either in Reason or Practice whether Warrandice takeseffect upon any other ground then what is or may be a ground of Eviction to take away the Right of the Party by whom the Warrandice is graunted judicially as when Lands are taken away by Innundation or are become barren Or when a Right assigned with Warrndice becomes ineffectual because the Debitor is not solvendo or when any accidental or extrujudicial distress or damnage befalleth to the party warranted through occasion of the ground of Warrandice though not by legal Eviction Secondly Whether Warrandice takes place when the Right warranted is taken away or burdened by a subsequent Law Thirdly Whether Warrandice in general will extend toward Releef and it Or to Forefaulture of the warrands own Superior As to the First Warrandice relates to the point of Right and not to the Matter of Fact and therefore will not reach to Accidents the hazard whereof lies alwayes upon the Acquirer and the Propriatar Yea a Clause of Warrandice that Lands should be worth so much yearly Rent was not extended to Desolation by famine March 10. 1636. Lady Dunipace contra Laird of Rouiston It was also ãâã that a Cautioner being conveened and through occasion of Compearance was made Prisoner in a Ship taken prize had thereby no interest upon the Clause of Warrandice to distress the Principal for this accidental Damnage James Maxwel contra James Nisbit of Ladytoun So that unless some what more be concurring then the naked Warrandice either by the value of the onerous Cause for which the Right is granted or Tenor of the Assignation it reacheth not the sufficiency of the Debitor or the like points of Fact as is Spotswoods opinion Tit. Assignation And it was lately found that where a Creditor had given a blank Assignation to a Cautioner who had payed him with absolute Warrandice that as to the Cautioner to whom it was gratuitous for the Creditor to give such a Warrandice importeth not the sufficiency of the Debitor July 16. 1663. William Hay contra Nicolson and Mitchel It was also found that absolute Warrandice in an Asignation bearing that the samine should be good valid and effectual was not found to extend to the Solvency of the Debitor but only that the Debt could not be excluded by any legal Exception either from the cedents deed or otherwise as if the write Assigned had been false the cedent not being accessory null or declared a publick Debt November 24. 1671. Sir Rober Barclay of Pearstoun contra Robert Liddel which quadrats with lib. 4. ff de haereditate et actione vendita Venditore nominis tenetur prestare debitum subesse Debitorem vero Locupletem esse non tenetur prestare As to the distress by subsequent Laws when these are by way of Declarator of an anticedent Right it is equivalent to a Judicial Eviction But when the Law is Statutory introducing a new burden as Taxes Augmentations of Ministers Stipends c. It was Craigs opinion dieges de evictione § 6. Which he reports as the Judgement of the Session that in such Cases the Warrand should be lyable in quantum lucratus est But Custome since hath cleared the contrary that Warrandice is never extended to subsequent Statutory Laws but that these are alwayes upon the Purchasers hazard And therefore a general Clause of absolute Warrandice was not extended to a burden imposed by a subsequent Law though there was an Anterior abrogat Law to that same effect July 12. 1667. Watson contra Law Neither was extended to the making up of a Gleib though it was by vertue of a Prior Law but the Designation was after the Disposition July 1. 1676. Laird of Auchintcul contra Laird of Innes Yea absolute Warrandice in a Ladies Liferent which is most favourable was found not to extend to an Augmentation of a Ministers Stipend thereafter though grounded upon a Prior Law March 27. 1634. Lady Dumfermling contra her Son But where a Clause of Warrandice did bear that a Rental of a Ladies Liferent should be so much worth yearly it was found effectual to make up an Abatment of the Rental by a Ministers Stipend modified thereafter July 28. 1635. Lady Cardross contra her Son Or to the making up a Readers Stipend imposed by a Posterior Law For in these Cases it was the special tenor of the Clause to uphold the Rental which would have been effectual not only as to Eviction in Jure but as to distress in facto by Inundation Devastation or the like The intent of Absolute Warrandice being only against legal eviction it doth not extend to every burden that may affect the Land as to a servitude of Pasturage Fewel Feal or Divet Or to a Thirlage of the Land to the Miln of the Barrony paying the ninteetnh Corn June 21. 1672. Sandelands contra Earl of Haddingtoun Absolute Warrandice is sometimes general and sometimes special against Ward Relief and Non-entry c. with a general Clause and all other dangers perils and inconveniences whatsoever as well not named as named c. as to which the general Clause is not to be extended above the greatest of the special But the question ariseth if such Clauses will reach subsequent Wards or Marriages of the Superiour or to future Porefaultures or Recognitions Non-entries Liferent-escheats c. It is certain that whatever of these burdens besal by the fault of the Warrand he must be lyable therefore Absolute Warrandice being much stronger then Warrandice from Fact and Deed which reacheth not only to Facts of Commission but even to ommission of Duties and therefore if the Warrandice be but by the Authour and not by the Superiour these subsequent distresses will not reach the Author unless the Clause bear expresly such distresses past present or to come and so though the fee were extinct by the Forefaulture or Recognition of the Superiour or burdened by his Non-entry or remaining at the
deeds to a third party this will import but a personal obliegement and will not affect singular Successors 55. But if the Dispositive Clause be expresly burdened with payment of such a sum to the Author or bear that upon that condition the Infeftment is granted and no otherwaies such a Clause was found effectual against a Singular Successor bearing only a Provision in the Dispositive Words that the Lands should be affected with such a sum and was sustained against an Apprizer November 7. 1676. Caucham contra Adamson here there was a Clause irritant in the Disposition but was not in the Charter 56. Provisions or Conditions in Infeftments impossible or unlawful if they be conceived as suspensive Clauses annexed to the Disposition they annul the same But if there be Provisions otherways adjected though they be in the Terms of a Clause irritant or resolutive they are void as not adjected 57. Provisions also inconsistant with the Nature of the Right are ineffectual as if it were provided that the Vassal should not owe fidelity to his Superiour or that the Right should be valid by the Charter without Seasine these Provisions are inconsistent and null 58. It is much debated amongst the Feudists whither Clauses de non alienando with an irritancy or resolutive Clause or that the Fiars should contract no Debt by which the Fee might be alienat or the Tailzie changed and they are generally for the Negative that a Clause prohibiting contracting of Debt or simply not to alienat are inconsistent with Property albeit they may be effectual if so qualified That no alienation be made or debt contracted to affect the Fee or alter the succession without consent of the superiour or such other persons but that being absolute they cannot be effectual against singular Successors whereas these limited prohibitions resolve but in Interdictions and being contained in the Seasines registrate they are equivalent to Interdictions published and Registrate though many such Clauses have been in Tailzied Infeftments yet none of them have come to be debated but that which was in the Tailzie of the Estate of Stormont Tailzied to Annandails Heirs Male of his Body whilks failing to Balvaird and his Heirs with a Clause not to annalzie or to contract any debt or do any deed whereby the Lands might be taken from the Heirs of Talzie otherwise the Contraveener should ipso facto loose his Right and the next person who would be Heir should have Right which being at length contained in the original Seasine and all the subsequent Seasines was found effectual to annual the Right of James Earl of Annandail who contraveened and of all his Creditors who apprized for his debt Febru 26. 1662. Viscount of Stormont contra Creditors of Annandail Other Clauses irritant consisting with the nature of the Right are effectual against singular Successors as the taking the Name and Arms of a Family And generally all real burdens of Lands contained in Infeftments though they give no present Right to these in whose favours they are conceived nor cannot give them any Fee of the Lands yet they are real burdens passing with the Lands to singular Successors though they bind them not personally but the Ground of the Land by Appryzing or Adjudication as if Lands be disponed with the burden of an Annualrent furth thereof to such a person and his Heirs this will not constitute the annualrent but may be a ground of adjudging an Annualrent out of the Lands In all these cases Purchasers by voluntary Disposition are presumed and ought to see their Authors Rights at least a progress of fourty years whereby they may know such Clauses and consider them in the price or otherways secure themselves against them But in the only Decision of this matter concerning the Tailzie of the Estate of Stormount which did pass with great difficulty the Lords being near equally divided special consideration was had that the Clause irritant de non alienando was expresly set down in the first and subsequent Seasines of Heirs whereby Creditors were certiorat of their hazard if they should lend their money that they could expect no security threfore by that Estate seing thereby the borrowers Right became void and therefore such Clauses or any other Clauses irritant or conditions that might evacuat infeftments or deeply burden the same when they are not particularly exprest in the Seasine may not only be quarrelled by anterior Creditors but also by posterior Creditors as latent and fraudulent Clauses to insnare Creditors who having no mean to know such Clauses do contract and lend sums of Money to persons whom they see standing Infeft in considerable Estates of Land Clauses de non alienando or non contrahendo debitum are most infavourable and inconvenient specially when absolute for first Commerce is thereby hindered which is the common interest of Mankind Secondly the Natural Obligations of providing Wives and Children are thereby hindered which cannot lawfully be omitted Thirdly It is unreasonable so to clog Estates descending from Predecessors and not to leave our Successors in the same freedom that our Predicessors left us whereby though they have the shadow of an Estate yet they may become miserable as if they should happen to fall into Captivity or in any Transgression that would infer a considerable fine against which no such Clause can secure then being disabled to borrow they behoved to be denunced to the Horn and thereby their Liferent Escheat fall to their Superiour which no such Clause can prevent and therefore if any man have ground to suspect the frugality of his Successor he may provide a part of his Estate by a Tailzie disabling that Successor to contract debt without the consent of such persons in which he confides leaving some part of his Estate to his diseretion For such a Clause irritant being in the Seasine published by Registration may be sustained as equivalent to an Interdiction such Clauses are also much more tollerable in Lands acquired by the Fiars own industry wherein if there be insert a Tailzie with a Clause de non alienando to be insert in the Original and all subsequent Seasines and bearing Provisions for the Wives of Successours not exceeding such proportion of the Fee and for Children only to affect such a proportion of the Free Rent Or if persons having no near relations of value prefer others of their Name or Kin to their Estates Or in case of mutual Tailzies such Clauses limited as aforesaid may be much more tolerate But Clauses of that nature have never been attempted but in proper Tailzies where they are diverse nominat Branches which are neither Heirs of Line nor Heirs Male to one another and where the main design is to preserve the Tailzie for when all the Branches are of far relation the preference of the first is not much above the rest and therefore the other Branches have by such Clauses jus acquisitum and are not simply Heirs but partly Creditors to
the first Branch and therefore though there were no Clause irritant they might reduce alienations meerly gratuitous or fraudulent especially when done not by the Heirs of Line or Heirs Male of him who constitute the Tailzie for these are always in every Tailzie in the first place and while the Fee continues in them it is rather a simple Fee then Tailzied as it becomes again when all the Branches of the Tailzie fail The perpetuities of Estates where they have been long accustomed have ãâã ãâã their Inconvenience therefore divices have been found out to ãâã them ineffectual Only the Majoratus of Spain hath been most ãâã ãâã and ãâã that the King Nobilitating a Person of Merit and ãâã either by the Kings Gift or his own Right that Estate can neither be alienate or burdened but remains alimentary for preservation of the Dignity of that Family But these perpetuities in England are now easily evacuat First by Warrands to sell purchased in Parliament which pass without much difficulty and if they become frequent with us it is like we will find the same remeid they are also evacuat by a simulat Action of fine and recovery whereby the purchaser pretends that he is unwarrantably dispossest of such Lands by the present Fiar who coludes and is silent having received a Price or other consideration so that these Sentences though Collusive must be irrevocable In Tailzies the Heirs Male or Heirs of Line of every Branch being the Issue of the Stipes of that Branch do succeed and therefore there is a good Caution by the Law of England that after the possibility of Issue is extinct the present Fiar can do no more as to the Fee but what a Liferenter could do The next Branch being ordinarly altogether strangers to that Fiar little care will be taken to preserve the Fee In the Tailzie of Stormount the whole Estate was not comprehended and it was distinctly provided that in case any of the Heirs of Tailzie for the time should contraveen that the Right should be divolved on that person who would succeed if the contraveener were dead But in such Tailzies formerly it was not so clearly ordered being only provided that the contraveener should lose his Right and the next Heir of Tailzie should have place whereby it remained dubious whether the next Branch of the Tailzie were meaned so that the contraveener losed his own Interest and all descending of him Or whether he losed the Interest of all descending of that Branch Or whether he losed only his own personal Interest wherein the design of the Constituter of the Tailzie might be dubious enough 59. To sum up this important Subject of Tailzies let us consider the effects thereof according to the several ordinary Tenors of the same and how far the Fiar or his Heirs of tailzie is bound up thereby we must then distinguish betwixt Tailzies having Clauses not to alter burden or alienat And these that are simple without any express restrictive Clause Secondly Betwixt Tailzies made freely and these that are made for onerous Causes Thirdly Betwixt these that have Clauses resolutive or irritant and these that have only such Clauses by way of Obligation Provision or Condition As to the first Case It is a general Rule that quisque est rei suae moderator arbiter every man may dispose of his own at his pleasure either to take effect in his life or after his death and so may provide his Lands to what Heirs he pleaseth and may change the Succession as oft as he will which will be compleated by Resigning from himself and his Heirs in the Fee in favours of himself and such other Heirs as he pleaseth to name in the Procuratory whereupon Resignation being accepted by a Superiour and new Infeftment granted accordingly the Succession is effectually altered yea any obliegement to take his Lands so holden will obliege the former heirs to enter and to denude themselves for Implement of that obliegement in favours of the heirs therein exprest and if the Superiour refuse to accept the Resignation altering the Succession a Bond of borrowed Money though granted only upon design to alter the Succession will be the ground of Adjudication of the Land and being assigned to the Fiar himself and to such heirs as he pleaseth the Superiour will be forced to receive him accordingly so that the first constituter of a Tailzie or any heir succeeding to him may change it at their pleasure unless the Tailzie be for an onerous Cause as when Tailzies are mutual then the first constitutors of the mutual Tailzies cannot alter the same although their Debts may affect the same yet no fraudulent or gratuitous deed can alter or evacuat such Tailzies and therefore a mutual Contract betwixt two brethren oblieging them that what Lands they should succeed to or acquire should be taken to the Heirs of their body whilks failzing to the Brother and the heirs of his Body c. though thereafter either Brother took their Lands otherways to their heirs whatsomever whereby Sisters having succeeded to one of these brothers they were decerned to denude themselves in favours of the other Brother January 14. 1631. Mr. John Sharp contra Helen Sharp But if the Cause onerous be of less import then to grant and continue a Tailzie it will import no more then once perfecting the Infeftment by such a Tailzie whereby the hope of Succession ariseth to these parties in whose favours the fiar is oblieged to take the Tailzy but he was not found oblieged to continue the same but that he might alter it thereafter without refounding the Money he got for granting it being but of that value as was equal only to the hope of Succession which behoved to be understood of alteration sine dolo July 15. 1636. Mr. David Drummond contra Drummond Heirs of Provision by Contracts of Marriage are in part ouerous being granted for a Tocher and the interest of the Wife concerned therefore they cannot be alterred by the Husband at his pleasure but do exclude all fraudulent or meerly gratuitous alterations as hath been shown Section fourty three But if there bean express Obliegement not to alter the Tailzie albeit that will not give Title to the Heirs of Blood of the present Fiar to quarrel his deed or alteration yet it will give interest to any other Branch of the Tailzie whether to the person nominat or his heirs to quarrel and reduce such alterations though it will not exclude alterations by Appryzing or Adjudication for debts truly borrowed by the Fiar and therefore a Tailzie of a sum of Money lent in thir terms to be payed to the Creditor and the heirs of his Body whilks failing to the Father and the heirs of hsi Body whilks failing to a person named and his heirs and assigneys whatsomever with a provision that the Creditor and his heirs should do no deed hurtful to the Tailzie nor the Debitor should not pay without consent of the heir
which there have been Decisions upon both parts wherein the Reconciliation may be that if the seven years possession entered not by order of Law or by consent of these who were then possessors but entered in the void possession or obtained the Rents from the Tennents of consent such possession was vicious because the former possessor continued to possess animo but if the former possessor had long forborn to possess before the seven years or that the subsequent possessor entered by authority of Law or consent of the former possessor there is no reason to make difference whether his Competitor was in possession before or not 83. Charter and Seasine are sufficient both for pursute and defence where there is not another Infeftment that comes in competition But when two Infeftments of the same subject compete if neither have had seven years lawful and peaceable possession then the point of Right comes to be debated without Reduction and either party must propone their alledgeances upon their Authors Rights in the same way as in Declarators of Right and whatsoever points are found relevant for either party or where the Rights alledged on are ordained to be produced before the relevancy be discust terms will be assigned to either party and they will get incident diligences by Exhibition against their Authors to produce and ordinary diligences for producing their own or their predecessors Rights and whatever the event be either party will be secure as to the by-gone Fruits consumed bona fide The effect of Infeftments in the point of Right is that by the first perfected Infeftment with the several requisites aforesaid granted by him who had power the Property is established and the Proprietar will be preferred at least in petitorio to all posterior Rights but if the granter have no power as not being validly insest himself or being impeded by Inhibition or Interdiction or by anterior diligence making the matter litigious he cannot validly confer a Right Concerning Interdictions we have spoken before Tit. 6. Litigiousness falleth in amongst the effects of legal diligence But it will be proper here to speak of Inhibitions seing the effect thereof reacheth only as to heretable Rights and cometh not so properly elsewhere under consideration 84. Inhibition is by Letters under the Signet prohibiting the party inhibite to dilapidate or dispone any of his Lands Heretages c. Which is understood till the cause for which the Letters were direct mentioned therein be satisfied It proceedeth summarily upon Supplication and production of any ground thereof whether Obligation or Process and though it pass of course yet sometimes is refused as to a Wife upon the Contract against her Husband Jan. 11. 1625. Hamiltoun Supplicant And to an appearand Heir against his Father upon his Fathers Contract of Marriage whereby it was provided that his Father should be interdicted to certain persons then dead January 16. 1622. Silvertoun-hill Supplicant but being past of course against an appearand Heir it was found valid because he was entered before the debate thereupon July 5. 1623. Kirkwood contra Belshes It was refused upon the warrandice of a Discharge from the dischargers fact and deed only unless the Supplicant show a particular hazard February 4. 1623. Patrick Forbes contra William Dick. The effect of Inhibitions reacheth only deeds done by the Persons inhibite after the Inhibition and doth not reach any deeds done thereafter by his Heirs and Successors but these must be of new Inhibite Hope Inhibition John Pirycon Secondly it hath no effect against moveables albeit growing upon the Ground the time of the Execution of the Inhibition though the Style thereof bear not to dilapidat Lunds Heretages Goods or Geir March 22. 1623. Laird of Braico contra Ogilvie Hope Inhibition Aikin contra Anderson yet it will reduce a moveable Bond in so far as it is the ground of an Appryzing but prejudice of personal Execution or against moveables July 2. 1630. Dowglas contra Johnstoun But it may proceed upon a moveable Bond Ibid. July 2. 1625. Porteous contra Elliot where reduction was sustained to the effect Appryzing may proceed upon the moveable Bond though no Appryzing or other real right had then followed upon the said Bond. Inhibition is only effectual against posterior voluntary rights granted by the person Inhibite but not against Appryzings Adjudications and Infeftments thereupon though posterior to the Inhibition if they procced upon a debt prior to the Inhibition yea though the date of a Disposition was prior to the Inhibition yet the same being granted to the Purchaser for himself and to the behove of others That Clause being filled up with another hand was presumed to be filled up after the Inhibition unless the contrary were proven to have been filled up before the Inhibition by Witnesses above exception Jan. 15. 1672. Lady Lucia Hamiltoun contra the Creditors of Monkcastle Neither will it be effectual against an Infeftment after the Inhibition proceeding upon a Disposition prior thereto or upon an obliegement to grant such an Insestment being prior to the Inhibition Hope Inhibition Patrick Stirling contra Tennents of Lethendy Here the posterior Infeftment was of the property and the prior obliegement was to grant an Annualrent which was to exceed the value of the property But where the prior debt bore an obliegement to Infeft in an Annualrent generally out of the debitors Lands the disposition of the property was reduced as posterior though upon a debt prior Jan. 21. 1629. Scot contra Turnbul And an Inhibition was found not effectual against a postenor Infeftment though it proceeded upon a prior Bond meerly personal and bore no obliegement to Infeft Hope Inhibition Laird of Tillibairn contra Laird of Clunic Inhibition was not found effectual against Dispositions posterior proceeding upon Bonds prior bearing obliegements to Infeft generally or particularly July 22. 1675. Sir George Gordoun con Seaton Feb. 6. 1635 Ross con William Dick. But Inhibitions extend not to posterior Renunciations of Wodsets which are deeds necessary upon payment though the Style of the Inhibition bore renunciation July 16. 1667. Mr. John Elleis con Keith whereby Creditors were much prejudged for remeid whereof the Lords by Act of Sederunt of the 19. of Feb. 1680. did declare that Creditors using ãâã against their Debitors Infeft in Wodset or Annualrent if they shall make intintation by Instrument of a Nottar to the persons who have right to the Reversions of the saids Wodsetts or Annualrents That the Wodsetter or Annualrenter stands Inhibit at their Instance and shall produce in presence of the party and Nottar the Inhibition duly Registrate that they will not sustain Renunciations or grants of Redemption although upon true payment not being made bona fide but after Intimation as aforesaid unless the Redemption proceed by Process whereunto the user of the Inhibition must be called Inhibitions must be execute by Messengers as the Style thereof bears against the person Inhibite personally or at his Dwelling-place and
falls by Reduction or nullity of Infeftments or retours 20. Burgage falls not in Non-entrie as to the Burgh or particular persons 21. The effect of the general Declarator of Non-entry 22. The effect of Non-entrie after Citation in the general Declarator 23. Exceptions against Non-entry as to the Feu-dutie or retoured mail 24. Exceptions against Non-entrie as to the full Rent 25. Whether Non-entrie after Ward requires Declarator 26. The Original of Relief 27. The Custom of England and France as to Relief 28. The quantitie of Relief with us 29. Whether Relief be due during Non-entrie 30. Whether Relief is due when the heir is entered whether the Fee be burdened with Conjunct-fee or Liferent 31. Relief stops not the heirs Seasine 32. Compositions for the Entrie of Appryzers or Adjudgers 33. The Original of Ward 34. The effect of Ward as to the heirs person 35. The effect of Ward as to the fee. 36. The restrictions of Ward 37. The value of the Marriage of heirs of Ward-vassals 38. The true interest of Superiours in the Marriage of their Vassals 39. The single value of Marriage not penal but favourable 40. Double value penal and unfavourable with the exceptions against it 41. Single value found due where the heir was Married before his Predecessor died by precipitation 42. The quantity of the single value in heirs male or female 43. Marriage is debitum fundi 44. It belongs to the eldest Superiour 45. The Royal Prerogative prefers the King to all others as to the Marriage of the Vassal 46. Marriage is due by the heirs of Appryzers 47. Exceptions against the value of marriage 48. The rise of Liferent-escheat 49. It extends to all kinds of Liferents 50. Liferents of fees not having Infeftment or not owing fidelity to a Subject belong to the King 51. Liferent escheat of sub-vassals to whom they belong 52. Liferent Escheat is not excluded by voluntary Infeftments after Denunciation not being for implement of a special Obliegement to Infeft before Denunciation 53. Liferent Escheat is excluded by Appryzing for debts anterior to the Rebellion there being Infeftments or Charge in cursu rebellionis 54. Liferent Esche it extends not to Burgage or mortification 55. But extends to Ministers Stipends 56. Liferent Escheat is made Effectual by Declarator HAVING now shown what is the interest of the Vassal in the Fee it will be the more easie to find out what the Superiours Right of the Superiority retaineth for what is proper to the Fee and is not Disponed to the Vassal is reserved to the Superiour and it is either Constitute as belonging to the Superiour constantly or casually 1. The constant Right of the Superiour standeth mainly in these particulars First Superiority it self is dominium directum as the Tenentry is but dominium utile as before is shown and therefore the Superiour must be Infeft as well as the Vassal and that in the Lands and Tenement it self without mention of the Superiority which followeth but upon the Concession of the Fee in Tenentry though sometimes through the ignorance of Writers Infeftments bear expresly to be of the Superiority 2. Only the Soveraign Authority as the common Fountain of all Rights of the Ground needs no Infeftment but hath his Right founded in jure communi and is not Feudal but Allodial and when the Right of Lands fall to the King by the Casuality of his Superiority as Forefaulture Recognition Bastardry or last heir if the Lands be holden immediatly of the King they are ipso facto consolidat with the Superiority and the Declarators required thereanent do not Constitute but declare the Kings Right without prejudice of what is consumed bona fide But where they are not holden immediatly of the King the Right thereof is perfected by Gift and Presentation whereby the immediat Superiour is oblieged to receive the Donatar by Infeftment like to that of his former Vassal yet the Kings Right by the Casuality though it be not perfected is real and effectual against all singular Successours whereby deeds of Treason and Recognition being in Facts ordinarly proven by Witnesses Purchasers cannot be secured by any Register and therefore must secure themselves by the Kings Confirmation novo damus But where the King succeeds in any Fee to a Subject as to Property or Superiority before he can alienat the same he must be served Heir in special thereunto so King CHARLES the first was served Heir to Queen Ann his Mother in the Lordship of Dumfermling in which King James Infeft her in Fee to her and her Heirs by a Morning-gift the first day after his Marriage with her and King Charles the second was served Heir to Charles Duke of Lennox in the Earldom of Lennox In which Service the Chancellour and fourteen of the Lords of Session were the Inquest the youngest Lord being left out because there could be no more but fifteen But the King needs no Infeftment upon such Retours but if he acquire any Lands holden immediatly of himself the Instrument of Resignation must be Registrat and if holden of a Subject there ariseth no real Right to a Donatar till he be Infeft upon the Kings Presentation and his Seasine Registrat by both which the certainty of Land-rights is preserved 3. Secondly Superiority carrieth a Right to all Actions following the Land against any other then the Vassal for seing Superiours are Infeft in the Lands they can only be repelled from such Actions by the Rights granted to their Vassals but by no others and so may remove Possessors who can show no Right this was found though the Superiours Infeftment bore him only to be Infeft in the Superiority of the Lands November 19. 1624. Lag contra his Tennents 4. If a Superiour become Fiar by Succession or Acquisition for Establishing the Property in his Person he may either be Infeft upon his own Precept or the Kings November 26. 1668. Daughters of Mr. Robert Mortoun 5. But a Superiour cannot interpose betwixt himself and his Vassals by Infefting another in the Lands to be holden of himself Such infeftment was found null by Exception January 30. 1671. Dowglas of Kelhead contra Vassals Superiours must receive and Infeft their Sub-vassals upon the refusal or incapacity of the Vassal and may at any time after receive the immediat Vassal or his Successour or another if the immediat Vassals Right be extinct or acquired by the Superiour which is no unwarrantable Interposition which is repelled as contrary to the Nature of the Feudal Contract and Right it being inconsistent that the Superiour should both give his Superiority to another and claim it himself Dans retinens nihil dat And if that were allowed interposed Vassals might be infinitely multiplied November 26. 1672. Earl of Argyle contra Mcleod in which case the late Marquess of Argyle being forefault Mcleod who was Argyles Vassal was retoured and Infeft in the Lands as holden immediatly of the King which did not hinder the King to Interpose this
Earl of Argile as Donatar to his Fathers forefaulture seing the King had done no deed to accept Mcleod as his immediat Vassal but that he was Infeft by Precepts out of the Chanclery passing of course 6. Superiours nor their donatars need not instruct the Superiours Right but the Vassal must acknowledge it or disclaim him upon his peril so it was found in the Casuality of Marriage February 25. 1662. Arbuthnet contra Keiths which will not hold if the Right of Superiority be newly acquired and no Infeftment given to the Vassal or his Predecessors by vertue thereof The Superiours Infeftment gives him interest to pursue Reductions and Improbations against all parties even against his own Vassals who will be forced to produce their rights under the Certification to be declared null or false and feigned though when they are produced they may defend them 7. Superiority carrieth a right to the Service and Duty contained in the Vassals reddendo and that not only personally against the Vassal upon any personal Obligation or Contract in Write but also by vertue of Intromission in meddling with the Fruits and Profits of the Land for all such intromettors may be pursued and distressed personally for the Duties contained in the reddendo which being granted to Masters of the Ground for their Tack Duty against Tennents and all intromettors with the rents is much more competent to the Superiour for his Feu-duty or other Service in kind how far this will be extended to Blensh-duty hath been shown in the former Title And as to Services which are annual as winning and leading of Peats c. these are not due if they be not required yearly in due time whether they be due by Vassals to the Superiour or Tennents to their Master January penult 1624. Carnowsie contra Keith So Service of Harrage and Carriage in a Feu-duty was found not due but when demanded within the year June 27. 1662. Mr. David Watson contra Mr. James Elleis 8. But also the Superiority carrieth the right to the duty of the reddendo really against the ground of the Fee for which he hath Action of Poinding of the Ground against the Vassal and all singular Successors to him whereby he may appryze the Goods upon the Ground or the Ground-right and Property of the Lands the saids Duties being liquidat upon repayment whereof the Lands are redeemable as in other Appryzings 9. Superiority carrieth the Right of Jurisdiction over the Vassals Lands and Inhabitants thereof if the same be granted to the Superiour in his own Infeftment either implicitely as being a Barrony Lordship or Earldom or expresly having the power of Courts and their Issues and though the Superiour grant the same to the Vassal yet that is not exclusive of his own right but cumulative therewith how far Superiority carrieth the right of Thirlage of the Vassals Lands to their Superiours Milns when the Vassals have not granted to them the priviledge of Milns and Multars will appear amongst Servitudes of which hereafter 10. Superiority carries all the Casualities thereof requiring Declarator to Heirs and singular Successors hoc ipso that they have the Superiority established in their person and do not fall to the Executors of the Superiour as to bygones before his death unless gifted or liquidat by Sentence March 5. 1611. Dowglas contra Captain Crawford February 19. 1635. Cunninghame contra Stuart July 11. 1673. Robert Fa contra Lord Balmerino and Laird of Pourie But Feu-duties or any Casuality may be separat from the Superiority by Sentence or Assignation and therefore a Disposition of the Superiority was found to imply an Assignation to the Feu-duties bygone which being to the vassal himself needed no intimation and was valid against a singular Successor Infeft in the Lands in Superiority December 14. 1676. Earl of Argile contra Lord Mcdonald 11. A Superiour of Kirk-lands pursuing his vassal for his reddendo was not excluded till he instructed that he consented to the surrender conform to the Act of Parliament 1633. annexing the Superiority of Kirk-lands to the Crown reserving the Feu-duties to the Lords of Erection who consented to the surrender which was presumed in possessorio June 27. 1662. Mr. David Watson contra Mr. James Elleis 12. Superiours are oblieged to receive Appryzers or Adjudgers for a years Duty albeit the Superiour alledge a better Right then the Appryzer but the Infeftment to bear salvo jure cujuslibet suo July 4. 1667. George Shein contra James Chrystie Yet a Superiour having received an Appryzer was not found excluded from any right to the Property though he made no reservation thereof seing his receiving was necessary July 19. 1664. Hospital of Glasgow contra Robert Campbel But a Superiour being charged to receive an Adjudger was found to have his option either to receive him for a years Rent or to pay the sum adjudged for getting Assignation to the Adjudication being redeemable by the Vassal from the Superiour and without any years Entry to be payed at Redemption seing the Vassal was not changed as is provided Par. 1439. cap. 36. June 10. 1671. Sir Francis Scot of Thirlestain contra Lord Drumlanerk 13. And a Superiour is also oblieged to receive a Donatar upon the Kings Presentation gratis without present payment of the Non-entry duties till declarator and if he refuse he loses his Superiority during his Life June 25. 1680. Laird of Blair contra Lord Montgomerie 14. A Superiour must also receive his Sub-vassal whom his immediat Vassal refused to Enter without further instructing of the Vassals Right but by receipt of the Feu-duty by him as Superiour wherein the mediat Superiour supplet vicem of the immediat salvo jure June 28. 1672. Menzies contra Laird of ãâã Yet a Superiour cannot exclude an Appryzer or Adjudger within the legal from the Rent of the ãâã till he pay a years rent December 3. 1672. Mr. Hendry Hay contra Earlstoun 15. And if a Superiour or any to his behove take the gift of his own Ward he was found to have no interest to extend it further against his Vissal Infeft with absolute warrandice then to a proportional part of the Composition and Expenses February 15. 1665. Boyd of Penkil cintra Tennents of Carslooth The like where the Ward had fallen after the Vassals Right for if it had fallen before he could have nothing December 1. 1676. Lord Lindsay contra Bargallon 16. Superiours are not oblieged to receive upon Resignation or by Confirmation and having accepted Resignation it did not exclude the marriage of the Resigners Heir there being no Infeftment upon the Resignation before the Resigners death November 14. 1677. Sir William Purves contra Strachan of Kinadie 17. Superiority falling to more Persons doth not obliege the Vassal to take Infeftment of them all but if heirs portioners of the eldest July 30. 1678. Lady Lus contra Inglis And by the same reason if the Superiority fall to many singular Successors by Appryzing or otherways the Vassal
needs only take Infeftment of the greatest Interest 18. The first and most common Casuality of Superiority is Non-entry whereby the Fee being void and no Infeftment renewed thereof through the Vassals neglect being capable of Entry thereto the Profits thereof belong to the Superiour By the common Feudal Customs there was not only an Investiture requisite at the Constitution of the Fee but it behoved to be renewed either at the change of the Vassal or at the change of the Superiour Guidilinus de jure nov Pars 2. cap. 6. Zoesius de feudis cap. 12. But our Custom requires no Infeftment at the change of the Superiour but only at the change of the Vassal for we require no oaths of fidelity but fidelity it self is imported due without an oath But elsewhere that oath is required and being personal it ought to be renewed both at the change of the Vassal and of the Superiour but with us there being no Fee without Infeftment nulla sasina nusla terra therefore the Vassal must have the Infeftment renewed The renovation of Infeftment to Heirs in France and England is not requisite but ãâã sasit ãâã as they express it by which a special retour perfecteth the Heirs right in his Fee with a great deal of ease which is not consonant to the common Feudal Customes whereby if the Vassal within year and day after his predecessors death require not to be Entered by his Superiour and offer his fidelity he forefaults his Fee l. 2. Feudorum tit 24. which severity we use not for the Vassal loseth not his Fee by Non-entry nor the whole Fruits of it during that time But our Custome is such if by any means the Fee be void the Vassals right ceaseth during that time and the Fee is in the hands of the Superiour and therefore in retours to that Article of the Brieve It is answered that the Lands are in the hands of such a man Superiour And though the Infeftment of the Predecessor against others then the Superiour be sufficient to maintain the Right and Possession of the Vassal as to his Superiour it hath no effect at all after special Declarator till the Vassal Enter The Fee may be thus void first by the minority of the Heir whereby he cannot Enter by reason of Ward but this is exprest by the name of Ward and Non-entry though it may signifie the Fees being void whether necessarly or voluntarly yet it is appropriat to the latter and contra distinguished to Ward The Fee becomes void by the voluntary outlying of the Vassals Heir or by the vassals Resignation in the hands of his Superiour for new Infeftment to be given to himself or to any other for till that Infeftment be taken the Fee is also in Non-entry for in that case the Resignation putteth the Fee in the Superiours hand upon whom there is an obliegement to renew the Infeftment to the person in whose favours the Resignation was granted upon which he may be compelled by a personal action so to do and which is carried to that persons Heir by a general service as other personal Heretable Rights or Dispositions 19. Or by the Reduction or nullity of the Infeftment or retour of any person formerly Infeft which is more rigorous then the rest seing the vassal had thereby a colourable Title and was bonae fidei Possessor seing Reductions use not to be drawn back adpraeterita So reduction of retours was sustained at the Superiours instance to give him the benefit of Non-entry July 12. 1625. Lord Cathcart contra Laird of Kerse Februany last 1628. Earl of Nithisdail contra Westraw and therefore it must be considered what the nature of the Right will import If Non-entry had its rise from ingratitude or a penalty with us by the negligence of the Vassal it could hardly take place in this case for unless such infeftments had proceeded upon the Fraud or gross ignorance of the Vassal himself it could not be called voluntary Non-entry which stood upon some informality unknown to the Vassal or his Predecessor But seing the ground of this Non-entry is from the Nature of the Right which cannot consist without Infeftment therefore by such nullity it must follow that while there was no Infeftment or a null Infeftment the Vassal had no interest neither will there be hazard of rigour because it can but extend to the retoured Duties and is eleided by all the ways that other Non-entries are and specially by the Superiours Homologation of the Infeftment if the nullity were in prejudice of the Superiour as when Lands are retoured to less retour mail then the due or Feu-duties or other Duties in the reddenda are diminished for it is not rare that that which is null as to some persons and cases may be valid as to others from these nullities being injuries to the Superiour Non-entry wil follow if there be no valid Seasine then Non-entry will take place though Charter and Precept be granted voluntarly seing Seasine was not taken thereupon 20. Non-entry taketh place whenever the Fee is void whether it be holden Ward Blanch or Feu But that which is holden in Burgage or is mortified requireth no Renovation of the Infeftment because Societies and Incorporations die not which is extended to the particular Tenements within Burgh holden Burgage which are thereby holden of the King and the Magistrates of the Burgh give the Infeftment as his Bailies 21. The effect of Non-entry is attained by a Declarator of Non-entry the Style whereof beareth that the Tenement is void by the death of such a person who died last Infeft and ought to be so declared and that the fruits and profits thereof do belong to the Superiour by reason of Non-entry Yet because the case of the Vassal is favourable Decreet is only granted declaring the Non-entry and finding only the Feu-duties due in Lands holding Feu July 19. 1631. Earl of Kinghorn contra George Strang Or the retoured Males in Lands holding Ward or Blansh which have any such retour Or otherways the whole Duties of the Fee are carried the reason hereof is because Feues are Locations and the Feu-duty is the Rent or Pension and therefore in favorabilibus that is interpret to be the Rent So likewise in other Lands the retour was a valuation of the Lands as they were worth and payed at that time The first whereof was called the old Extent and it is exprest by Merk-lands or Pound-lands The other is the new retour which though it be different in divers Shires yet being once a Rent in this favourable case the general Declarator reacheth no further yea though there be no retour of the particular parcel of Land in question yet if there be a retour of the Tenement or Barrony whereof it is a part that common retour will be divided according to the present Rent and a proportion thereof stated upon this parcel as its retour as was found in the former case Earl of Kinghorn
exclude Non-entry while they were allowed by the Acts of Parliament as there is also shown neither is it excluded by Tacts set by the Vassal which though they stand as real Rights against Purchasers by Statute yet have no effect against Superiors in prejudice of their proper Casualities Neither is it elided by Charters or Precepts granted by the Superior though containing warrandice till Infeftment thereupon March 20. 1630. John Hay contra Laird of Achnames Neither was it excluded by Apprysing and Charge thereupon without offer of a years Rent of the Land or Annualrent of the Money Feb. 3. 1681. Hendry Keir contra Hendryson Neither is it excluded because the Vassal was not in mora being hindred by a Question of Bastardry against him Spots Non-entry ãâ¦ã contra Naiper of Wrightshouses Nor doth the Vassals Minority stop Non-entry of Lands not being Ward nor restore the Minor as Lesed For as hath been now shown It is not the negligence of the Vassal but the nature of the right that infers Non-entry yet there is no doubt if it be by the Superiors fault it will be a personal Exclusion against him Non-entry is most favourable when extended as to the retoured duties But as to the full Rents it is capable of many other exceptions and doth not alwayes run from the Citation in the General Declarator as if a Superior raise his Declarator and also Reduction of the Vassals Seasine though he reduce the Seasine he will not have the full Rents till the Decreet of Reduction and Declarator Novemb. 26 1672. Earl of Argyle contra Laird of Macleud yea if the Superior do not insist but only use Citation which may be at the Vassals dwelling house and never come to knowledge or the Vassal being a Pupil without any Tutor it is not like the Lords would sustain the whole Duties from the Citation but from the time the Vassal becomes contumacious And Queensberry having interposed Kelhead betwixt him and his Vassals who thereupon pursued Declarator of Non-entry though the Infeftment was found null yet the Disposition was found to carry a Gift to the Casualities of the Superiority and the Vassals were only found lyable for the Rent after the Interloquitor sustaining the disposition as a gift of Non-entry and where a Tailzie was found to exclude a second Branch so long as there was hope of a former Branch the Lands were found in Non-entry as to the retoured Mail but not as to the full Rent seing the Heir did not forbear to enter through wilfulness but of necessity Julie 24. 1677. Lord Melvil and David Melvil his Son contra Sir William Bruce And where a Singular Successor to the Superior pursued Non-entry it was not sustained till he produced his progress from the acknowledged Superior the full duties were not found due from the Citation Julie 18. 1680. Earl of Queensberry contra Irwin of Cove And Craig relates that where the Defunct died in Battle for his Superior Non-entry should have no place We shall not here speak of common exceptions which extinguish all Rights as prescription homologation or the priviledge of these who are absent reipublicae causa As to the Question whether Non-entry Subsequent to Ward whereby the Superior or his Donatar is in possession requireth any Declarator Craig and Skeen upon the word Non-entry are for the negative and since Had. and Durie observe March 23. 1622. Lesly contra Pitcaple that the Lords found that where the Superior pursued both for the Ward and subsequent Non-entry that he or his Donatars not being in possession by the Ward behoved to declare the Non-entry which would only carry the retoured Mails till Declarator The next Casuality of the Superiority is the releef due by the Vassal to his Superior for his entering him in the Fie as the lawfull successor of the Vassal And though relees be only considerable in Ward-holdings and uses to be subjoyned to Ward yet all Fies which require Renovation are lyable to releef and therefore Releef is here immediatly subjoyned to Non-entry 26. Releef is generally treated upon by the Fewdists The Original whereof Cujace ascribeth to the constitution of the Emperor Leo extant in the Novels bearing it to be the custom of several places that the superior should have that years Rent in which he receives a new Vassal in his Clientel which therefore by most of the Feudal Customs is extended to the singular Successors of the Vassal who in some places pay for their Entry the fifth of the price of the Fie and a fifth of that fifth whereby if the price were 100. Crowns the composition for the Entry would be 24. Crowns 27. But by the Customs of England and France the Heir of the Vassal if he be Minor payes no releef but he and his Fie are in the hands of the Superior as in Ward or Custody whereby the Superior hath the whole profites more then is fit for the Education and Intertainment of the Minor Valsal which ceaseth with his Majority and there is no releef due But if the Vassals Heir at his Death be Major his Fie is lyable to his Superior for releef which distinction is mentioned in the English Magna Charta the quantity of the releef by Heirs in England is in Ward-holdings or Military Fies 100. Pounds Sterling for an Earldome 100. Merks for a Baronry and 100. Shillings for any other Military Fie which is oblieged to maintain one Souldier And if the Fie be less and lyable only for a share of the entertainment of a Souldier it is lyable Proportionally Relief by the custom of France is for a Barrony 100. Franks and for any other Military Fie 15. But if it answer not to the entertainment of one Souldier it payes for every Aiker 12. Deniers but if it be not a Military Fie but that which the English calls Sockage the Reddendo whereof is not Military service but some other payment or performance which is doubled the first year after the death of the Vassal the one half thereof is the releef which is a real burden for which the Superior may Poynd or distrenzie all goods upon the ground But as to singular Successors the most ancient Feudal Customs making them only to descend to the Issue of the first Vassal whose Collaterals had no right but were like our kindly Tenents by the propinquity of blood yet by the favour of the Superior they were oftimes admitted in the lie and were only lyable for relief If the Superior did receive a stranger upon the resignation of his Vassal he was to pay a relief which in some places was the fiftieth part of the Price And by the Custom of France it is the thirteenth part From the Original of Relief the reason of its name may be conjectured and these who appropriat it to Ward-holdings interpret it to be called relief from redeeming or Relieving the Fie out of the hands of the Superior But relief being a general Feudal name and many Nations not allowing the
rights doth take off from him the Ward if the right be Feu only generally without mention of the Ward seing the Act 1606. doth only annul Feues set by Vassals holding Ward of Subjects without their Superiours consent which was so found albeit the Feu was under reversion that it was free of the Ward and Marriage of the Vassal as to the subvassal feuer but did only affect the Vassals interest viz. the Feu duty reversion and back-tack July 2. 1672. Earl of Eglintoun contra the Laird Greenock Ward is also restrained by the Terce and Liferent of Husbands by the Courtesie of Scotland both which are introduced by Law and are valid without the Superiours consent But Rentals and Tacks set by the Vassal have only this effect against the Superiour or his Donatar that the Tennents or Labourers shall not be removed till the next Whitsonday after the beginning of the Ward paying the old accustomed Duty Par. 1491. cap. 26. But then the Superiour or his Donatar may remove them notwithstanding their Tacks be unexpired which therefore sleep during the Ward but revive against the setter and his Heirs and endure as many years after the Ward as they were excluded by the Ward Sinclar May 21. 1549. Laird of Durie contra Robert Steuart Ledingtoun December 16. 1569. Kings Donatar contra Tennents of Drorgan July 4. 1611. Laird of Couter contra Where also the Terce was found relevant to exclude the Superiour yet Ward is not excluded by Annualrents holden of the Vassal March 11. 1629. James Weyms contra Kincraig But now since the Act of Parliament 1606. Prohibiting Feues without consent of the Superiour these did not exclude the Ward or other Casualities of the Superiority as to Fees not holden of the King which was even extended to the Fees holden of the Prince Hope Ward Lady Cathcart contra Vassals of Cathcart And after the Act of Parliament 1633. extending the foresaid Act to Ward-lands holden of the King and Prince Feues then granted till the year 1641. when the effect of that Act being before suspended by Act of Parliament 1640. was taken away And so Feues of Lands holden of the King or Prince were valid till the rescissory Act 1661. whereby the said Parliament 1641. was rescinded Par. 1661. cap. 15. So that now Feues of Lands holden of the King Prince or any other Superiour without their consent do not exclude it or other Casualities of the Superiority except such Feues as were granted the several times they were allowed by Law but a Charter upon an Apprizing did exclude the Ward though no Infeftment was taken thereupon during the Vassals life as Hope observes Title Ward Hamiltoun contra Tenents of Newburgh because the Superiours Charter without Seasine did import a Gift of the Casualities which might befall to the Superiour and he there observes that a Ward was excluded by Appryzing and Infeftment thereupon whereby the Defunct was denuded albeit it was to the behove of his Heir Laird of Ley contra Laird of Barro During the Legal the Superiour or Donatar as before the Infeftment upon the Apprysing they might pay the Appryzer and take his right So after they may redeem him and exclude him it being against reason that by Appryzing suppose of a great Tenement for a small debt the Superiour should be simply excluded and it may be upon design if an Appryzer Possess his Ward falls and not the former Vassals though the Legal be not expired but after the Ward is fallen though the Superiour received an Appryzer Appryzing from the Heir without Protestation yet it was found not to prejudge the Ward by the death of the former Vassal July 9. 1664. Hospital of Glasgow contra Robert Campbel But a Superiour was not excluded from the Ward by his Vassalt death because an Appryzer had charged him to Enter him during that vassals life seing that Charge could not make the Apprizer vassal by whose death Ward would fall and thereby make the Superiour lose this Casuality by the death of both the old Vassal and the appryzer unless the Superiour had been in mora aut culpa which was not found unless a years rent of the Land or Annualrent of the Money And a Charter were offered with a Bond to pay what further the Lords should modifie February 19. 1669. Black contra David Trinch If an Appryzing be satisfied or extinct by Intromission the Ward-lands appryzed become in the Superiours hands by Ward till the Majority of the heir July 20. 1671. Lindsay of Mount contra Maxwel of Kirkonel In which case the Appryzer was not found oblieged to restrict to his Annualrent to the effect that the Donatar of Ward might have the superplus by the Act of Parl 1661. cap. 62. betwixt Debitor and Creditor whereby there is a power given to the Lords of Session to cause Appryzers restrict to their Annualrent which is only personal in favours of the debitor if he demand it The benefite of Ward is also burdened with the Mentainance and Sustentation of the Heir by vertue of the foresaid Act 1491. cap. 25 whereby a reasonable Sustentation according to the quantity of the Heritage is appointed to the Heir if he have not Lands Blensh or Feu to sustain him and that by the Superiour and his Donatar and Conjunctfiars and Liferenters of his Estate the quantity whereof is to be modified by the Lords according to the quality of the Heir and so found not only when the Heir had no means but though he had if it was not sufficient to entertain him the superplus was modified out of the Ward-lands and Lands Liferented proportionably March 16. 1622. Heirs of Miltoun contra Calderwood We shall say no more of the Aliment of Heirs by Ward Superiours or their Donatars in this place but you may see it in its proper place Title 27. Section third Thus it appeareth in what way the Casuality of Ward is excluded burdened or restricted being always by Law or by the consent and deed of the Superiour but no private deed of the Vassal without the Superiours consent or appointment of Law can burden the Fee when it is in the hands of the Superiour by Ward c. So that Servitudes introduced by the Vassal as Thirlage ways and the like are not effectual against the Superiour or his Donatar when the Fee is in their hands Unless such Servitudes be introduced by Prescription of fourty years or immemorial Possession whereunto all parties having interest their consent is presumed and therefore in that case there is more ground for sustaining of the Servitude even against the Superiour who might at least have used civil interruption Marches set by the Vassal of consent or by Cognition whereto the Superiour is not called hath no effect in his prejudice during the Ward Feb. 8. 1662. Lord Torphichen contra As to the personal debts of the Vassal whether Heretable or moveable they do not affect the Fee though in Ward albeit Craig Dieges 20. relateth that of
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 ãâã 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
most frequently Blensh for a Penny but if no holding be exprest it is held to be Ward and therefore the Casualities of the Superiority befall to the Superiour according to the kind of the holding as in Property so that being Ward or Blensh it falleth in Non-entry in the hands of the Superiour without Declarator and so ceasseth during that time even though the constituent as Debitor be Superiour though he may be lyable personally upon any personal obliegement for paying thereof March 23. 1631. Somervel contra Somervel Annualrents may be either base or publick by Resignation or Confirmation as to the requisits to accomplish it when base it is fully shown before Title 13. § Base Infeftments 5. So likewise annualrent falling in Liferent escheat belongs to the Superiour during the annualrenters Life and if it be redeemed the Profite of the Money comes in place thereof as followeth a pari from a Wodsett redeemed which was fallen in Liferent-escheat and therefore the Money was ordained to be imployed upon annualrent for the Superiour during the Life of the Wodsetter June 29. 1661. Tailziefer contra Maxtoun and Cunninghame 6. The English distinguish Rent in Rent-Service Rent-Charge and Rent-Seck Rent-service is that which is due by the reddendo of an Infeftment of property as a Feu or Blensh duty this is a part of the Infeftment of Property but hath the same effect by poinding of the Ground as other Annualrents Rent-charge is that which not being by reddendo yet is so Constitute that the Annualrenter may brevi manu his Terms being past poind the Ground therefore we have no such Annualrent for we admit of no distress without publick Authority but all execution must proceed by Decreet and Precept Rent-seck is so called as reditus siccus because it is dry having no effect without Sentence such are our Annualrents 7. There is a distinction of Annualrents mentioned Par. 1551. c. 10. in feu Annuals Ground-annuals and Top-annuals which Craig thinketh to quadrat with the English distinction of Rents But the consideration of that Act and Ordinance in relation to the Articles there exprest will make it appear that the case being there of Tennents within Burgh the Feu Annual is that which is due by the reddendo of the Property either of the Ground before the House was built or the Ground and House together Ground-annuals is a distinct several annualrent Constitute upon the Ground before the House was built and the Top-annualrent is out of the House which is the more clear that when such Tenements were destroyed the least abatement was of the Feu-annual or Feu-duty and therefore the Proprietar repairing the Tenement was to pay the Feu-annuals with abatement of a sixth part and the Ground-annual as being more ancient then the Top-annual suffered an abatement of a fifth part and the Top-annual of a fourth part 8. The chief effect of Annualrents either by reddendo in Property or several Infeftments is by poinding of the Ground upon which the Annualrent is constitute and that by an ordinary Action whereby the Annualrenter pursueth upon Letters to Poind and Appryze all Goods upon the Ground for payment of his Annualrent and also for Poinding and Appryzing the Ground-right and Property it self As to the first member the English Custom extendeth it to all goods that shall happen to be upon the Ground at the Term if they have but lain down thereupon And our ancient custom extendeth it to all Goods of the Possessors invecta illata by them without retrinching it to what the Tennent is due to the Proprietar Constituent of the Annualrent and the Poinding in this case was extended to purge a Spuilzie November 21. 1628. Watson contra Reid June 26. 1628. Laird of Ednem contra Tennents of Ednem where the pursuit was rather declaratory to establish the pursuers Right then for present Possession or Execution But thereafter the Lords have been accustomed to interpose with Chargers upon Decreets of Poinding of the Ground to restrict the same in favours of Tennents to their Terms mails from the Statute 1469. cap. 36. bearing that the Cattel of poor men Inhabitants of the Ground shall not be poinded for the Landlords debt where the Mail extends not to the avail thereof and though the Act seemeth Correctory of an evil Custom to poind the Tennents Goods for the Masters debt yet the same reason equity and favour of their Rusticity craves the Extension of it to these debita fundi and therefore it was so restricted the Tennents producing their Tacks or offering to depone upon their Rent summarly without taking a Term but it was not found requisite that the Annualrenter should either lybel or prove the quantity of the Rent February 14. 1674. Lady Pitfoddels contra the Laird of Pitfoddels and Tennents In which case it was found that if the Tennents the time of the poinding had compeared and produced their Tacks or had offered to make Faith what the Rent was if more had been poinded for then equivalent to their Rent it would have been a Spuilzie but they should not only depone what their Rent is but what is resting of it for the poinding of the Ground or the Brieve of distress is only restricted by the Act of Parliament for remeid of that inconvenience that was sometime in use that where sums are to be payed by the Brieve or Distress against the Lord owner of the Ground the Goods and Cattel of poor men Inhabitants of the Ground were taken and distrenzied for the Lords debt where the Mail extends not to the avail of the debt and therefore it is ordained that the Tennent shall not be distrenzied for the Lords debt where the Mail exetnds not to the avail of the debt further then his Terms Mail extends to And therefore in so far as the Tennents Mails are resting the poinding may proceed And likewise for the current Terms though not yet come that is if the Rent be Victual payable all at one Term the poinding may proceed for the value of the victual according to the Rate of the Victual communibus annis in the several places of the Countrey as men use to buy or Wodset or by the feirs of that place Neither cantacks absolutely secure the tenents if they be posterior to the Infeftment of Annualrent in which case if they be within the true value of the Land the ãâã or others poinding pro debitis fundi cannot be prejudged by Collusive Tacks or such as are granted with considerable diminution of the true worth So that the poinding may proceed for one year or Terms Mail as the Lands are worth the time of the poinding But in this case the poinding cannot proceed summarly till it be cognosced by Declarator or Reduction of the Tacks which may frequently occur Tennents being oft accustomed to suspend in Decreets for poinding the Ground Poinding of the Ground was found to take no effect against Corns standing upon the Ground having been
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
Miln Thirdly When the Heretor of Milns or Lands Feues and dispones the Miln with the Multure of his own Lands per expressum all these ways are not contraverse constitutions of thirlage whether they be in an Infeftment Contract bond or other personal right for these being cled with Possession are sufficient to constitute a Servitude though the right of the Miln being a separate Fee ãâã Infeftment Fourthly When the Heretor of the Miln ãâã or Dispones the same with the Multures used and wont though he do not express out of what Lands it is sufficient to constitute a Thirlage upon the Lands which were wont to pay in Towns Multure being then his own Lands or to convey the right of the Multures of other Lands being formerly astricted But where a Barrony was principally disponed with the Miln thereof and the Multures of the Miln used and wont it was not found to extend to the Multures of another Barrony holden of another Superiour though in use to come to that Miln December 11. 1666. Earl of Cassils contra Tennents of Dalmortoun and John Whiteford Fifthly Thirlage of a whole Barrony is inferred by Infeftment in the Miln of the Barrony with the Multures of the said Miln being granted by the Heretor both of the Miln and Barrony whereby these parts of the Barrony that were not in use of astricted Multures before were thereby astricted and that according to the use of the rest of the Barrony Jan. 31. 1611. Wilson contra Warrock here the constitution bore not used and wont but Multures of the Miln generally The like where the Infeftment bore only the Miln of the Barrony with astricted Multures not repeating Multures of the Barrony July 9. 1611. Alexander Moncrief contra Borthwick and Pittinweem Sixthly Thirlage is constitute without Infeftment or any Write subscrived by the Heretor of the Lands astricted but only by an Act or Rolment of Barron Court bearing the Heretors consent and fourty years possession conform Hope Milns and Multures Earl of Murray contra Earlesmiln The like by Decreet against the Possessors their Master not being called or consenting but his Bailie inacting them to pay Multure with long possession Ibid. Mr. Andrew Miln contra Patrick Falconer Seventhly A dry Multure was found constitute and instructed by use of payment fourty years without any other adminicle because it could not be constructed as a free or voluntary deed as other Multures may be Hope Milns and Multures James Dog contra Maxwel and the Tennents of Prestoun July 23. 1675. Sir George Kinaird contra Mr. John Drummond Eighthly Thirlage is inferred of Lands within Barronies of the Kings Property to the Milns holden and repute to be the Milns of that Barrony only as being in use past memory of man to do deeds of Thirlage as paying of Multures laying in of Damns February 5. 1635. Dog contra Mushet January 8. 1662. James Stuart contra Feuars of Aberlednoch January 4. 1662. John Nicolson contra Feuars of Tillicoutrie Nor was it found relevant that the Feuars had right cum molendinis in the tenendas which was but past of course in Exchequer in the common Clause as was found in the foresaid case January 8. 1662. James Stuart contra Feuars of Aberlednoch The reason hereof is because the Kings Rights are Constitute Jure Coronae without Infeftment or other Write which is not requisite or accustomed to be keeped and therefore the presumption from long possession is sufficient Craig l. 2. Dieges 8. Relateth it as the opinion of some that immemorial Possession is sufficient to instruct the Thirlage of Kirklands in the same way as of the Kings Lands to which he assenteth not but the reason seemeth much to be the same especially after the Reformation when the Evidents of the Kirk were lost or destroyed So that long possession hath been sufficient to instruct the right of Propperty of Kirklands and may much more instruct this Servitude unless Milns and Multures had been granted to the Feuars anterior to the Feu of the Miln But unquestionably Thirlage is easilier sustained in kirk-Kirk-lands then others as it was sustained being by an infeftment of a Miln cum Multuris generally and the Bishops Precepts to his Tennents to pay their Multures to that Miln with long Possession though without consent of the Chapter Decemb. 7. 1665. David Veatch contra John Duncan 17. As to the negative first Thirlage is not inferred by use of coming to the Miln and paying Multures there at though immemorial even though the Multures payed were as great as the thirle Multures March 13. 1635. Gilchrist contra Menzies The reason hereof is because such payment is but voluntatis non necessitatis and therefore can no more infer a Servitude then they who past memory came such a way to a Town were astricted only to come that way But Infeftment in a Miln with the astricted Multures of such Lands per expressum and fourty years possession of paying the insucken Multures was found to constitute the Thirlage though the Feuars were infeft cum molendinis before the Feu of the Miln and sometimes went to other Milns which not being frequent and for some whole years was found but clandestine and such as occurs in all Thirlages and no legal interruption June 29. 1665. Heretors of the Miln of Kythick contra Feuars Secondly Thirlage is not inferred because the Lands are a part of the Superiors Barony having a Miln of the Barony where the Vassals Infeftment contains cum Molendinis Multuris or a Feu-duty pro omni alio onere or such a Feu-duty allanerly Novemb. 26. 1631. Oliphant contra Earl of Marshal But where the Barons Disposition contained not these Clauses his giving a subaltern Infeftment of a part of his Barony which part was thirled to the Miln before it was not found liberat but continued thirled to the Miln of the Barony though the Miln and Multures of the Barony were disponed thereafter to another July 17. 1629. Newlistoun contra Inglis For if the Vassal had acquired that part of the Barony with the Multures it would have been exprest particularly or generally seing thereby the seller behoved to diminish the rental of his Miln Thirdly Thirlage of a Barony or any part thereof was not inferred by a Disposition or Infeftment of a Miln granted by the Baron though it be the only Miln of the Barony seing he expressed not it to be so nor expressed any Lands nor the Multures thereof but only dispo ed the Miln with the pertinents July 12. 1621. William Douglas contra Earl of Murray In this case there were several acts of Court thirling the Tennants and long possession which was not insisted on but only the act of Court which was not found sufficient seing it was only by a Bailie without warrand or consent of the Heretor albeit cled with fourty years possession But a Decreet against the Tennants for astricted Multures and immemorial possession was found to constitute Thirlage to
The Viccarage Teinds is local according to the custom of every Benefice or Paroch and therefore was suftained for the Viccarage of Salt and so much out of each Loom but not upon thirteen years Possession but only upon prescription by fourty years Possession November 29. 1678. Mr. John Birnie contra Earl of Nethâsdaââ and his Tennents Yea in the same Paroch there was found diversity of the Viccarage some places having no Viccarage of Cows and other places paying Viccarage of Milk and Wool for Sheep and other places paying Viccarage of Hay Goose and Grice July 7. 1677. Parson of Prestounhaugh contra his Parochioners And Viccarage was not found due out of Yards which were a part of the Chanrions Portions unless it were proven that they had been in use of payment of Viccarage before 7. Some Lands also by long custom are Teind-free as Temple-lands being out of use of payment of Teinds for fifty years were found free for all time thereafter Hope Teinds Earl of Wigtoun contra Lady Torwood Gleibs and Manses are also Teind-free And the Teinds of Lands belonging to the Cystertian Order Hospitlers and Templers were Teind-free and so continue in their Feuars though the priviledge was only as to what these Orders laboured themselves yet the Teind was found to belong to their many Feuars for what the Feuars themselves labour July 15. 1664. Thomas Crawford contra Laird of Prestoungrange 8. Teinds were prohibite to be set in Feu to Lay-men by the Lateran Council held by Pope Innocent the second or any way to be alienate from the Church Though Church-lands might be set Feu these being accounted but the Temporality and the Teinds the Spirituality as flowing from a Spiritual ground or Divine Right 9. Teinds are also acknowledged with us to be the Patrimony of the Kirk Par. 1567. cap. 10. and they are not annexed to the Crown as the temporality of Benefices are Par. 1587. cap. 29. 10. Yet decimae inclusae are here excepted for these are Feued with the Stock and can be only such as time out of mind have gone along with the Stock and never have been drawn nor separate and therefore are so ordinarly exprest decimae inclusae nunquam antea separatae and therefore such are presumed to have been Feued out with the Stock before the Lateran Council and so consistent with the Canons But if it can be proven that once they were separate by Church-men though they had right both to Stock and Teind and were Feued with Teinds included they are not valide decimae inclusae which no Church-man could Feu after the said Council Neither can the King constitute Feus de novo cum decimis inclusis so that these Teinds included are estimate as no Teinds long custom being fufficient to make Lands Teind-free and therefore they have never come in with Teinds or Benefices in any burden affecting Teinds by Law as Ministers Stipends c. 11. About the time of Abolition of Popery in Scotland the Popish Clergie did grant more frequently long Tacks of their Teinds the King also gave Donatives of Teinds and erected them with church-Church-lands into Barronies and Lordships so that there remained little of them no way able to entertain the Ministers and much Contraversie was like to arise about them till all parties having interest submitted and surrendered the same to the King First By the general surrender of Erections and Teinds Secondly By a particular surrender of some Beneficed persons Thirdly Of the Bishops Fourthly Of the Burrows The King upon the 2. of September 1629. Ordered the whole matter to this effect that the whole Teinds should be consolidat with the Stock being always affected with competent Stipends to Ministers c. And that therefore the Titular or the Tacks-man of the Teinds having perpetual or hereditable Right should sell the same to the Heretors at nine years puchase and where the Right was temporary or defective the price thereof should be made less accordingly 12. And for that effect a Commission was granted for valuation of Teinds and for disponing thereof as aforesaid and for modifying and localling Stipendsto the Ministers His Majesty reserved to Himself only a yearly Annuity of ten shilling Scots out of each Boll of Wheat and Barley eight shilling of Pease and Rie six shilling of Oats where the Boll rendered a Boll of Meal and proportionally less where it rendered less these Decreets were Ratified and prosecuted by several Acts of Parliament 1633. cap. 8 15 17 19. And 1641. cap. 30. Par. 1647. cap. 32. Par. 1649. cap. 46. Par. 1661. cap. 61. there was an exception in the Act 1633. cap. 19 which ordained the Teinds of all Abbacies and other Benefices except the Teinds pertaining to Bishopriks and other Benefices which fell not under the submission in which there is a Clause that the saids Bishops and Beneficed persons should enjoy the Fruits and Rents of their several Benefices as they were possessed by them the time of the said Submission and therefore where they did draw the Teinds by the space of fifteen years before the year 1628. or at least seven years of the saids fifteen years or had the same in rentalled Bolls they should so continue and not be valued which provision is repeated Par. 1662. cap. 9. all this proved for the most part ineffectual for compelling Titulars and Tacksmen of Teinds to sell their interest in other mens Teinds to the proper Heretors because these Commissioners allowing them an option to allocat whom they pleased for the payment of the Ministers Stipend few ventured to pursue them for Vendition least they might be excluded be allocation which they were willing to avert by giving the dearest Rates but if the Stipend had been laid proportionally upon all the Kings favour had been more effectual and equal but buying of Teinds being thereby retarded the great work of these Commissioners was to value modifie and allocat Stipends when the Tack-duties of the Tacksmen were not found sufficient to make up theStipend the Commission did increass the Tack-duties upon the tacks-men and in recompense thereof prorogat their Tacks whereby they though at first being but slender Rights by many nineteen years Prorogations became little less then Heretable Rights 13. The Annuities of Teinds not being annexed to the Crown were disponed by King Charles the first to James Livingstoun a Groom of His Bed-chamber to be uplifted by him till he was satisfied of the sum of Which Right was purchased by the Earl of Lowdoun and did receive many stops and took litle effect till the Kings return who gave a Commission to the late Earl of Lowdoun to transact for the bygone Annuities and to Dispone them with the full Right thereof in all time coming and his Disposition with consent of two Members of Exchequer was declared sufficient Rights to the buyers and were appointed to be Recorded in the Books of Exchequer that the sums gotten therefore might be known and imputed unto the sum
power ãâã detain the whole Fruits of the Benefice in his own hands as is clear in the said last Act Par. 1592. cap. 115. Thirdly Patrons are Tutors and Guardians to their Church without whose consent the Incumbent can set no Tack longer then for three years Par. 1594. Cap. 200. Patrons had also an indirect interest in their own Benefices where the Ministers had an ordinary Stipend settled to them by long custom or modification yet far within the worth of the Benefice The Patrons used to present them to the Benefice but withal took Tack of them to confident persons to their own behove carrying the superplus of the profite of the Benefice over and above the accustomed Stipend of their predecessors which hath not been quarrelled as a Symoniacal Paction or Dilapidation It seems also that Patrons for resemblance of personal Patronages ought to be Alimented out of the Benefice if they come to necessity according as their Benefice may bear though there hath occurred no occasion to question or try this point but by the Act of Par. July 23. 1644. Session 1. c. 20. The power of disposing of the vacant Benefice or Stipend was taken from the Patron and Stated in the Presbytrie and Paroch to be disposed upon for pious uses and by Act of par 1949. c. 39. The power of presentation is also taken away yet thetitle ãâã unsitly design that Act an abolution of patronage for there is no more there taken away but the power of presentation but on the contrary where the patron could have no Interest in the Benefice of Teinds but indirectly as aforesaid that declares the Heretable Right of the Teinds over and above the Stipend to be in the Patron but with necessity to dispone the same to the Heretors for six years purchase but these Acts are now Rescinded and patrons returned to their ancient Rights but they are excluded from the Fruits in the Vacancie which are applyed to pious uses for seven years and thereafter during his Majesties pleasure par 1661. cap. 52. and the Vacancies for seven years after the year 1672. are applyed to Universities par 1672. cap. 20. Ecclesiastical Benefices were so ordinarly patronat that there were scarce any free but all were presumed o be patronat and where the right of patronage did not appear to be established in any other the Pope was presumed patron before the Reformation and after the Reformation the King is presumed patron jure Corona where the right of another patron appeareth not There are other patronages belong to the King jure privato as when the King or his predecessors acquired any rights of patronages from any private person or when the King or his predecessors founded or doted the Benefice or when any Lands or Baronies fall in the Kings hand as Superiour by recognition or forefaulture all such having annexed thereto or comprehended therein the Advocation Donation and Right of patronage of any Kirk the King doth thereby become patron all those patronages are at the Kings dispose and transmissible to any Subject by the Kings proper deed either annexing or incorporating the same in Baronies or Lordships or by distinct Gifts for the patronage doth ordinarly pass as annexed to Lands Charters of Burghs Baronies or Lordships yet they may pass without Infeftments as jura incorporalia But there are other patronages which by Act of Parliament are annexed to the Crown either expresly or when Baronies Lordships or Benefices are annexed to the Crown if therein patronages of any Benefice were comprehended they are annexed though not exprest for Barony or Benefice are nomina universitatis being united and erected and therefore the Barony or Benefice without expressing Patronage do carry the same by Resignation Appryzing Adjudication Recognition or-Forefaulture as well as Salmond fishing or Milns But these Patronages being a part of the annexed Patrimony of the Crown cannot be disposed by the King without a publick Law or by a special Act of Dissolution for particular reasons of publick good anterior to the Kings Gift and Ratifications in Parliament which pass of course and are accounted but private Rights which will not establish the same though in the Ratification there be a Clause of Dissolution which is always understood to be as a private Right and not a publick Law The Patronages of all Bishopricks belong to the King who designs the person to be Bishop and though the Chapter may use the formality of Election they do not refuse the Kings Designation The order of this Election is prescrived Parliament 1617. cap. 1. where the Dean and Chapter are ordained to choose the person whom the King pleases to nominat and recommend he always being an uctual Minister of the Kirk who being Elected hath sufficient right to the Spirituality of his Benefice but not to the Temporality till he have a Charter from the King and do homage and swear obedience to him but the Arch-bishop of Saint Andrews is to be elected by the Bishops of Dunkel Aberdene Brichen Dumblane Ross Murray Orknay Caithness the Principal of Saint Leanards Colledge the Arch-Dean of Saint Andrews the Viccars of Saint Andrews Leuchers and Couper or most part of them Parliament 1617. cap. 2. And by the same Act the Arch-Bishop of Glasgow is to be Elected by the Bishop of Galloway Argile and Isles and the ordinar Chapter of Glasgow or most of them the Bishop of Galloway being Conveener of the Electors and now the Bishop of Edinburgh since that Bishoprick was Erected is by the Erection made an Elector and Conveener The King is also Patron of many Laick Patronages and there are several other Laick Patronages belonging to Subjects Ecclesiastick Patronages belong now only to the Bishops to whom some Kirks are patrimonial or Mensal the Fruits whereof are a part of the Bishops Benefice and the several Paroch Kirks are not distinct Benefices but partes beneficii but most be served by the Bishop himself or a Minister who is a Stipendiary and by the 19. Act Parl. 1633. all Ministers are appointed to be provided with sufficient Stipends being eight Chalders of Victual or eight hundereth Merks at least except in singular cases referred to the Commissioners for plantation of Kirks who are authorized as Commissioners of Parliament to value Teinds modifie Stipends and grant Localities for fixing thereof upon particular Lands The Bishops have the Patronage of some Kirks without their Diocies and do present to the Bishop of that Diocie but if the Bishop should acquire any patronage of a Kirk within his own Diocie that Kirk cannot be Patronat but becomes free and is conferred by the Bishop pleno jure for he cannot present to himself yet by the Collation the person Collated is not a Stipendiar but is Parson or Viccar and hath the full benefite of the Fruits except in so far as they are restricted by Tacks set lawfully by them or their Predecessors The common Kirks which were to be provided by the Bishops and their
price thereof to be payed by the Heretors to the saids Titulars of Erection with a burden of Annuity to the King excepting the Teinds of the Surrenderers own proper Lands being always subject to His Majesties Annuity Which Submission His Majesty accepted and there followed thereupon an Instrument of Resignation at Whitehall May 14. 1628. There was also a Submission made by the Bishops of all Teinds belonging to them or their Patrimonial Kirks providing they be not damnified in their Benefices as they were then possessed either in quantity or quality whether the samine were payed in Rental Bolls or drawn Teind so that the Submission did only reach to Teinds that were in Tack or other use of payment and whereof the Bishops or beneficed Persons were not then in Possession by Rental Bolls or drawn Teind this Submission was in Anno 1628. There is also a Submission by the Burrows of their Teinds in the same year and a fourth Submission by several persons having right to Teinds in Anno 1629. The King did pronounce His Decreet Arbitral upon the Submission of the Lords of Erection upon the second of September one thousand six hundred and twenty nine whereby He Ordains the Lords of Erection to have ten years Purchase for the Feu-duties and all their constant Rents consisting of Victual or Money the Victual being reckoned at an hundred Merks the Chalder deducing so much of the Feu-duties as were equivalent to the Blensh-duties contained in the Infeftments of Erection for which nothing was to be payed and allowing the Lords of Erection to retain the Feu-duties untill they were redeemed His Majesty did also decern that each Heretor shall have his own Teinds that such as have right to other mens Teinds shall after valuation thereof whereby the fifth part of the constant Rent which each Land pays in Stock and Teind is declared to be the Teind and where the Teind is valued severally that the Heretor shall have the fifth part of the yearly value thereof deduced for the Kings ease and the price of the said Teind for an Heretable Right was made nine years purchase And for other Right of Teinds inferiour to Heretable Rights proportionably according to the worth thereof to be determined by a Commission to be granted by His Majesty to that effect and that both for Tacks of Teinds and Patronages There are also Decreets by His Majesty upon the other Submission to the same purpose and by the tenth and fourteenth Act Par. 1633. the Superiorities of all kirk-Kirk-lands are annexed to the Crown except these belonging to Bishops with the Feu-duties of the said Superiorities reserving to the Lords and Titulars of Erections who subscribed the general Surrender of Submissions Their Feu-duties till they be redeemed at ten years purchase and reserving to them the Property holden of His Majesty for payment of the Feu-duties contained in the old Infeftments preceeding the Annexation By the 12. Act Par. 1633. the King restricts his general Revocation in October 1625. Registrate in the Books of Secret Council February 9. 1626. in a Proclamation then emitted and another July 21. 1626. to the annulling all pretended Rights to the Property of the Crown as well annexed as not annexed whereof an account hath been made in Exchequer and of the principality unlawfully disponed by His Predecessors against the Laws and Acts then standing and to the annulling of Erections and other Dispositions of whatsoever Lands Teinds Patronages and Benefices formerly belonging to the Kirk and since annexed to the Crown and any other Lands and Benefices Mortified to pious uses and of Regalities and Heretable Offices and the change from Ward to Blensh or Taxt-ward since the year 1540. Upon this progress it may be questioned whether the Patronages that formerly belonged to Church-men and were annexed to the Lands Burrows or Benefices and thereafter were erected in Temporal Estates do belong to the King or Lords of Erection And next whether these more improper Patronages of the Patrimonial Kirks of Abbacies whereby the Lords of Erection coming in the Abbots place do claim the Right of Presentation or Nomination of Stipendiary Ministers to these Kirks do belong to them or the King As to the first there seems less difficulty that the Patronage which did belong to Abbots of Kirks which were not of their Patrimony but whereof they had only jus presentandi do belong to the King because such Patronages are annexed to the Crown by the general Act of Annexation which though it does not mention Patronages yet the Barony or Benefice wherein such Patronages were comprehended were expresly annexed And Barony or Benefice being nomina universitatis will comprehend Patronages Incorporate therein or annexed thereto so that without Dissolution no Subject can pretend right to the Ecclesiastick Patronages of Abbots Priors c. and as to the Lords of erection who fall under the exceptions of the general Act of Annexation they having submitted and surrendered all their Titles of erection to the King and particularly their Patronages and thereupon the King having by His Decreet Arbitral Ratified in Parliament reserved only to them their Property Lands and Teinds and Feu-duties till they be redeemed and the Superiority being again annexed which is the dominium directum of these ecclesiastical Baronies the ecclesiastick Patronage of the Abbots comprehended in nomine Barroniae do therewith belong to the King unless they have been Disponed after Dissolutlon or a Subjects Title to the Advocation Donation or Right of Patronage of such Kirks be perfited by prescription for the act of prescription 1617. hath no exception of the Kings Right to which the prior act that the King should not be prejudged by the neglect of His Officers doth not extend but that interruption within the fourty year is requisite even for the King the form whereof was ordered by the Lords of Session and approven by Parliament 1633. cap. 12. But there is much more difficulty as to the other point concerning the Patronage of these Kirks that were parts of the Patrimony of the Abbots which before the Reformation were not Kirks patronat but patrimonial but thereafter being dissolved and declared distinct Paroch Kirks The Abbots power of nomination of Viccars in these kirks became to be exercised by Presentations to the Kirks which Presentations were given by the King to some Kirks even where there were erections but in most erections the Lords of erection did present as coming in place of the Abbots and did in their Original or subsequent Right insert the Patronage of some or all of the Patrimonial Kirks of these Abbacies and where the Right of Patronage is not exprest the Lords of erection have but small ground to pretend to these and where they are exprest and perfited by Prescription they are secure so that the question will remain as to the power of presentation to the patrimonial Kirks of Abbacies where prescription hath not cleared the question but that sometimes the King sometimes the
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 ãâã 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
Grassum before and therefore Rentals expresly so granted or to tennents Constitute kindly tennents though they contain no Ish should not be annulled for want of an Ish which is implyed in the nature of a Rental to be a Life-rent and it would be far contrary to that favour that in other cases is allowed them to sustain them but as verbal Tacks lasting for a year Upon this ground it is that a Rental granted to a man and his wife not bearing the longest liver nor any issue was yet found to Constitute them both Rentallers during their life and their wife surviving to enjoy the same February 20. 1629. Laird of Ley younger contra Kirkwood 21. Rentals do ordinarly contain a Clause not to subset assign or annalzie which if it be contraveened not only the assignation or sub-tack is void but the Rental it self February 28. 1610. John Hamiltoun contra Thomas Boid The like being subset as to a part pro tanto Hope rentals Lord Douglas contra Walkinshaw But if the Assignation or Sub-tack was to the Major part it did annul the whole Rental November 13. 22. Laird of Craigie Wallace contra his Tennents Yea though the Subtack was only granted for certain years and these expyred before the pursuit Hope rentals Earl of Roxburgh contra Ker. This is so far extended as being in the nature of a Rental without any such Clause that it falleth in whole in the same manner as ward-Ward-lands recognosce by alienating or subsetting the whole or major part if Possession follow and that by exception or reply March 15. 1631. Earl of Galloway contra Burgesses of Wigtoun Though the alienation was by Excambion and was conditional if the Heretor consented else to be null The like where the Rentaller had given a Disposition of the Rentalled Room whereupon the acquirer was in possession which was found to annull the Rental albeit it bore Assigneys and to exclude a Sub-tack by the Rentaller to that same party before any contraversie moved February 21. 1632. Laird of Johnstoun contra Jamison The like though the Sub-tennents offered to repone the Rentaller November 13. 1622. Bonar contra Nicolson The like upon an Assignation of an Rental though it contained a power to sub-set and in-put and out-put Tennents March 21. 1623. Laird of Craigie Wallace contra his Tennents But this taketh no place if the Sub-tack be set to the Rentallers eldest son who was to succeed March 19. 1622. Earl of Roxburgh contra Robert Gray It will also be elided if the Heretor receive duty from the Assigney as Assigney Hopehic Laird of Craigie contra his Tennents But it will not be inferred by the Rentallers entering another in Possession without granting him a Right in Write July 5. 1625. Laird of Aitoun contra Laird of Wedderburn last of January 1633. Laird of Cleghorn contra Crawfoord unless the Rental contain an obliegement to put no other in Possession and then it became null by granting tollerance and that by exception against the person having tollerance without calling the Rentaller July 15. 1628. Maxwel contra A Rental setting the keeping of a House Yard and others to the Rentaller and his Heirs as kindly Tennents was not found null by demolishing the House and Yard whereby the Rentaller failed in his duty and in the cause of granting the Rental January 29. 1628. Duke of Lennox contra Houstoun 22. A Sub-tack is that which is granted by the principal Tacks-man to his Subtennent who doth not thereby become Tennent to the setter of the principal Tack this is competent to Tacks-men where Lands are set to them or their Subtennents or that they have power to out-put and in-put Tennents and it is like a subaltern Infeftment it hath the same effect to defend the possession as the principal Tack it self if it be cled with possession and cannot be taken away by any Renounciation granted by the principal Tacks-man though his Tack bore not Assigneys but though it be not observed it hath born either power to in-put Tennents or Sub-tennents July 14. 1625. Earl of Mortoun contra his Tennents Yea when the principal Tack was reduced for not production the Sub-tacks-men not having been called the Sub-tack was sustained as a defence notwithstanding the Reduction seing the Heretor had consented to the Sub-tack December 13. 1626. Earl of Galloway contra Meculloch Yet otherways the Heretor is not oblieged to know the Sub-tack nor to call the Sub-tacksmen in the Reduction of the principal Tack and it becomes null by exception unless the Substacks-man had appeared and produced his interest in the Reduction or in the second instance can propone a defence sufficient for the principal Tacks-man or himself after which it did not defend him as bon a fidei possessor after Inhibition or drawing the teind Decem. 11. 1623. Earl of Wigtoun contra Parochioners of Stobo but otherways the Sub-tack would be sufficient till warning This is the effect of a Sub-tack passive but active it is not a sufficient title to pursue without instructing the principal Tack unless it had been acknowledged by the defender or cled with possession sufficient for a possessory Judgement March 29. 1622. Sir James Cleiland contra Tennents of Arbuckle For in Intrusions or Ejections Sole Possession is the Title 23. Tacite Relocation is that which is presumed to be the minde of both parties after expiring of a Tack when neither the setter warneth nor the Tacks-man renounceth for other significations of the alterations of their mindes will not suffice these being the habile way of voiding Tacks which is now much more strengthened by the Statute Prohibiting tennents to be put out without warning before Whitsonday But where warning is not requisite though other competent ways of evacuating the Tack will be sufficient as Inhibition in teinds or actions for removing summarly from Fortalices Coalheughts c. Yea though warning hath been used if it prescrive by three years not pursuing thereupon it hath no effect even against tacite Relocation July 6. 1610. Mr. Robert Bruice contra Captain Andrew Bruice There is a kind of tacite Relocation by taking the Rent before the hand during which time as Craig observeth in the forecited place the setter cannot remove the Defuncts Successor for the years ensuing in both which cases he is understood to relocate tacitely by these deeds Tacite Relocation hath the same effect to maintain Possession that the Tack had even against singular Successors and that not only to the Tacksmen but to the sub-tennents being Possessors who alledged the principal Tacks-man was not warned and were not oblieged to alledge he had a Tack for terms to run but only that he was not warned December 2. 1628. Mr. Walter Whitefoord contra Johnstoun But where the Sub-tennent was warned tacite Ralocation alledged by the Sub-tennent was not sustained without producing a standing Tack to the principal Tacks-man January 30. 1663 Riccart contra Laird of Udnie Here the warning was by a singular
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 ãâã 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 ãâã 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
successors right because being only probable by oath of party the oath of the author will not prove against his singular successor Neither will Declarations Back-bands or conditions of Trust be comprehended under Reversions but they remain obliegements personal upon the person intrusted unless they contain express obliegement to re-dispone which is a reversion albeit it be not formal or if it bear to denude himself in favours of the disponer or any other but if it be but in trust to his behove though thereupon via actionis he might be compelled to denude yet is no reversion and however hath no effect against singular successors unless they be registrate as aforesaid except in so far as they may be grounds of reduction against the parties intrusted or their singular successors partakers of the fraud 6. It is also frequently provided in Reversions That if the condition of the Reversion be not performed betwixt and such a time the reversion shall expire and sometimes it is provided so to be ipso facto without Declarator This is a clause irritant irritating or annulling the Reversion which in the Civil Law is called Pactum Legis Commissoriae in pignoribus and is thereby rejected and void as an usurary paction whereby the Wodsetter getteth more then his just interest as a penalty which therefore as in other cases ought to be modified to the just interest especially seing indigent Debitors through necessity of borrowing money will be easily induced to such Clauses And therefore a Back-band for redemption of a Tenement bearing such a Clause irritant was found null two years after the terme and after a Decreet of removing all meliorations being satisfied July 8. 1636. Cleghorn contra Ferguson The like was found in an Assignation to a Bond under reversion of a smaller sum which was found penal and modified to the just interest June 25. 1623. Mitchel contra Robson Yet such clauses irritant are effectual upon the failie committed unless they be purged by performance which is ordinarly received when offered at the bar in the Declarator of the expirie of the reversion So was it found purgeable at the instance of the Reversers Creditors 19. of March 1631. Doctor Scot contra Dickson of Headrig Yea though the payment be not present a time will be granted before the Extract of the Decreet of Declarator of the expirie of the reversion that in the mean time the failie may be purged Feb. 7. 1628. Pringle contra Ker but no such time was granted where the requisition was upon ninescore dayes but Decreet was given unless present payment were made July 19. 1625. Nairn contra Napier But Clauses irritant in Reversions are only thus qualified in real Impignorations but when the reversion is of a true sale not in security but for an equivalent price or where it is granted after the right related to and not for implement of a promise or condition made at that time it is valid for only pactum legis Commissoriae in pignoribus is rejected in Law And therefore the Irritancie was not found purgeable before the Declarator where the Reversion was of Lands disponed for a competent price by a true sale January 17. 1679. James Beatsone contra Harrower A Bond bearing that failing Heirs-male of the granter and of his Brothers bodie that the Heirs-female should denude in favours of a Sisters son upon payment of a certain sum being registrat in the Register of Reversions was found valid against a singular Successor as a conditional reversion and not as a substitution albeit the Bond was granted by an Heretor and that the Land was never wodset but became redeemable by this Bond and was not prejudged by a posterior Liferent granted by that Heretor in favours of his Wife which would have been effectual if it had been a substitution But the sum upon which the Heir-female was oblieged to denude was ordained to be re-imployed for the Wife in Liferent January 16. 1679. Laird of Lambertoun contra Lady Blanergesk 7. As to the nature of Reversions they are stricti juris and not to be extended beyond what is exprest and so not to be extended to the sAssigneys of the reverser when not exprest yea not to his Heirs unless it be so exprest but where Heirs of the Reverser were not exprest without adjecting the ordinary clause of paying the debt to the Wodsetter by the Reverser any time during his life and so Heirs were not found omitted dedita opera but by negligence they were not excluded January 9. 1662. Earl of Murray contra Laird of Graunt And a Reversion taken by a father disponing to his son found to be extended against the Heirs of the son though Heirs were not mentioned Feb. 6. 1630. Muir contra Muir The like Spots redemption William Hamilton contra Hamiltons And therefore the day of consignation being appointed eight dayes after the terme the Consignation was not sustained at the terme it self though these dayes were introduced in the Reversers favours July 12. 1634. Lord Balmerino contra Eliot of Stobs Yet where the Reversion bore the premonition to be at the Paroch-Church it was sustained being used only personally Decemb. 11. 1638. Finlason contra Weyms And where the Reversion did bear consignation at the Creditors house in London it was sustained being at his successors house at Edinburgh Feb. 1. 1667. Creditors of Sir James Murray contra Sir James Murray 8. The constitution or nature of Wodsets being thus cleared as to the kindes thereof Wodsets are either proper or improper and they are either publick or base 9. A proper Wodset is where the fruits of the thing Wodset are only given for the annual-rent of the sum and the hazard or benefit thereof whether it rise or fall is the Wodsetters and there hath never been any case decided finding such proper Wodsets usurary upon exorbitancy of profite But by the Act of Par. 1661. betwixt Debitor and Creditor all Wodsets before that Act though proper are so altered that if the person having right to the Reversion offer surety and demand possession the Wodsetter must quite possession or else restrict himself to his annualrent and count for the superplus and that not from the Act of Parliament or Citation but from the offer of security which was not sustained at the instance of a singular successor in the right of Neversion not having produced his right to the Neversion at the requisition and though it was produced in the Process the Wodsetter was not found oblieged to restrict or cede the possession because he was in natural possession by labourage till he were warned before Whitsonday Feb. 20. 1679. Bruce contra Robert Bogie though there was a Clause in the Wodset renuncing the Usurpers Act and all such Acts made or to be made for that Exception in the Act of Parliament relateth only to preceeding Clauses thereof and not to the Clause anent Wodsets which is posterior January 29. 1662. Laird of Lamingtoun contra Sir John
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 ãâã 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 ãâã 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
away the real right of Wodset so the Money came to be in the Property of the Wodsetter as moveable and fell to his Executor which till a Declarator was not so seing the Order might be passed from December 19. 1629. ãâã contra Miller where it was found that the Consignatar was oblieged to re-deliver the Consigned Money to the Consigner his Heirs or Assigneys passing from the Order though the Wodsetter to whose use it was Consigned was not called The like was found that till Declarator the congned sums remain in the Property of the Consigner and belong not to the Executor of the Wodsetter but to his heir or where Declarator of Redemption was after the Wodsetters death January 21. 1673. Thomas Nicol contra Lourie Iune 18. 1675. Laird of Lie contra Forbes of Blacktoun Upon Declarator of redemption Letters will be obtained summarly against the Consignatar to re-produce the Consigned Money December 7 1631. 1631. Grierson contra Gordoun But though the Instrument of Consignation will instruct the Consignation against the Wodsetter yet it will not prove against the Consignatar without his oath or write subscribed by his own hand Ianuary 14. 1630. Lausree contra Miller 21. Redemption was not elided by a singular Successor obtaining Infeftment of the Wodset Landsafter the Order or at least the Infeftment being base not cled with Possession till after the Order though it was cled with seven years Possession before Declarator Hope Confirmation Earl of Errol contra Tennents and Lady Seaforth 22. Wodsets are also taken off by Premonition or requisition requiring the sums upon which the Wodset is granted which makes the sums moveable and the Infeftment of Wodset void yet so that the requirer may pass from his requisition and the Infeftment revives January 29. 1635. James Hamiltoun contra Tennents of Calder The Requisition may be also past from indireclty by uplifting the Duties of the Wodset Lands for Terms after the requisition Hope Usury Thomas Waliace contra Laird of Edzel or taking posterior Terms of Annualrent from Principal or Cautioner Requisition requires also the same solemnities that Premonition requires and therefore it was not sustained where the Procurator designed no time nor place to pay the Money required and the Instrument was mended at the Bar as to the reading of the Procuratory and the truth of it referred to the defenders oath which the Lords admitted not the Instrument being otherways produced in Judgement this was in expyring of a Reversion for not payment upon requisition The like when the requisition bore that February 7. 1628. Maxwel contra Laird of Innerweek The like where the requisition mentioned not the production or the Procuratory though it bore not it to be called November 13. 1622. Laird of Bass contra Wauchop This was in a requisition only to validat a Charge the contrary was found where it bore that the Procurators power was known to him and the witness Ianuary 18. 1665. Stuart contra Stuart Here there was an Apprising deduced upon the requisition The like where the Procuratory was not called for and was in the Procurators hand June 28. 1671. Hellen Home contra Lord Justice Clerk 23. Declarators of redemption or renunciations or grants of redemption do ordinarly bear that the Wodsetter renunceth all right to the Wodset Lands and albeit he have a distinct right it will not stop the Declarator nor obliege the redeemer to debate thereanent in that Proces Nor will it stop the entering the redeemer in the Possession in which he entered by the Wodset but that right will only be reserved November 22. 1677. Sir Archibald Stuart of Castlemilk contra Duke of Hamiltoun And if the Wodsetter condescend upon and give evidence of any other right beside the Wodset it will be particularly reserved or the renunciation will only bear all right by vertue of the Wodset Hope Confirmation Baikie contra Iuly 2. 1623. Earl of Errol contra Bukie And in the case of redemption of an Appryzing the renunciation was restricted to the right in question February 22. 1631. Murray contra Lord Yester Declarators of redemption do descern the Wodsetter to renunce and resign all right to the Wodset Lands unless a right distinct from the Wodset could be instructed which will be excepted or an evidence given of such a right which thereupon will be reserved But a general reservation of other rights was not sustained but a Declarator of redemption was found a species of Declarator of right after which no right competent and omitted will be sustained which was then known February 2. 1676. Duke of Lauderdail contra Lord and Lady Yester TITLE XXI Extinction of Infeftments Where of Resignation ad remanentiam Recognition Disclamation Purpresture and other Feudal Delinquences 1. The form of Resignations ad remanentiam 2. They may be by Procurators or propriis manibus 3. Instruments of Resignation prove not without a warrand in write 4. Resignations ad remanentiam were valide without Registration till the year 1669. 5. Resignations imply all burdens by the Vassal affecting the fee. 6. Resignation by him who hath no right with consent of him who hath right how far effectual 7. How far Superiours may not reject resignations ad remanentiam 8. How Infeftments become extinct by Succession as heir or Singulari titulo 9. The original of extinction of fees not by the Vassalls consent but by his deed 10. Recognition by alienation of the ward fee. 11. Recognition by Infeftments a se. 12. Whether recognition can be incurred by deeds in minority or on death-bed 13. Whether recognition can be incurred by Sub-feudation 14. How far feues exceeding the half of the full rent may subsist without recognition 15. In what cases other feues of ward-lands infer not recognition 16. Recognition by alienation is only of Lands clearly ward simple or taxed 17. Recognition is not incurred unless the major part be alienate 18. Recognition is not incurred by alienations to the Vassals appearand heir 19. Whether recognition be incurred by alienations on condition that the Superiour consent 20. Inhibition excludes not recognition 21. Recognition is not excluded by the Vassals drunkeness when he alienat 22. How the Superiours consent may be adhibite to alienations to shun recognition 23. How far the Kings Confirmation without a novodamus takes off recognition 24. How recognition is taken off by homologation 25. Recognition excludes all Infeftments Tacks or Servitudes by the Vassals deed without the Superiours consent or authority of Law 26. Servitudes by prescription are not excluded by recognition 27. In recognitions who must be cited and who may compear 28. The Title and Order in declarator of recognition 29. Disclamation how incurred 30. Purpresture how incurred 31. Feudal Delinquences adduced by the Feudists for resolving fees 32. Attrocious deeds against Vassals fidelity to their Superiours resolving their fees 33. How far the ignorance or weakness of the Vassal excuses with other exception for the Vassal 34. Whether the delinquence of the Sub-vassal
Customs rule ordinarly according to the Feudal-books The doubt remaineth which may be cleared thus First Though in some cases alienation be extended to Location yet it is not so by the common feudal Customs Secondly If the Subfeu-dation be a real Feu-ferm whereby the Feu-duty is considerable and competent to intertain the Vassal such Sub-feudation is thereby accounted only Lacation Nor doth it infer recognition being in effect no more then a perpetual Location whereby the Antinomy in the Feudal Law is sufficiently reconciled that such Sub-feudations are not alienations But if the Sub-feudation be Ward Blensh or in Mortification or though it be under the name of Emphyteosis yet for an elusory or an inconsiderable and unproportionable Feu-duty which by no estimation can be correspodent to the profite of the Fee but within the half of the true worth in these cases the Sub-feudation is alienation inferreth recognition 14. As to our own Customs in this point they do agree to the common Feudal Customs as to Subaltern Infeftments Blensh Ward or in mortification or Elusory or unprofitable Feus But as to Feues by which the major part of the profite of the Ward or Fee is not taken away though such cases have not occurred to be contraverted they seem not to infer recognition for if the major part be not alienate Subaltern Infeudations though Blensh or in Mortification infer not recognition when these rights are disjunctim of parts of the Fee There appears no reason that the Subfeudation of the whole with a Feu-duty equivalent to the half of the true Rent whereby in effect the half is not alienate seing the dominium directum of the whole and the profite of the half is retained should infer recognition especially now when generally Fees are granted for Causes Onerous 15. And by the Statute allowing Feues Par. 1457. cap. 72. It is provided that the Feu be set to a competent avail which by the said Statute is cleared to be without diminution of the Rental and which is commonly interpret the retoure duty because it was the publick valuation and rate at that time And by the said statute such Feues are confirmed and declared not to be prejudged by the Ward without mention of the hazard of recognition as not being consequent upon such Feues But this Statute being abrogate as to the Leiges Par. 18. Ja. 6. cap. 12. All Sub-feues of Ward-lands holden of Subjects without the Superiours consent are declared null and void But there is no mention of recognition to be incurred thereby And Feues are only prohibited as being in prejudice of the Over-lords who are not prejudged if the major part be not alienate seing all Subaltern Infeftments not exceeding the half are allowed by Law And albeit the Narrative of the Act respect Feues preceeding it yet the Statutory part is only as to Feues granted thereafter And the like prohibition is appointed for the King and Princes Vassals Par. 1633. cap. 16. The effect of this Act as to the Vassals of the King and Prince was suspended till the next meeting of Parliament and the Vassals exempted therefrom in the interim Par. 1640. cap. 36. And the said Act was wholly repealed Par. 1641. cap. 58. And so remained until all these Parliaments were Rescinded seing the private rights of parties acquired thereby by the general Act Rescissory Par. 1661. cap. 15. But it hath been found that alienations during these Acts now rescinded and during the usurpation when Wards were discharged did infer recognition seing the Vassal did not seek Confirmation after the Kings return December 15. 1669. Maitland of Pittrichy contra Gordoun of Gight The like was found in the recognition at the instance of Sir George Kinard contra the Vassals of the Lord Gray The like though the base Infeftment inferring recognitien was in Anno 1643. when there was a Statute then standing allowing such Infeftments seing after rescinding that Statute no application was made to the King for Confirmation January 7. 1676. Cockburn of Riselaw conira Cockburn of Chouslie But recognition was excluded where the Vassal required the Superiour to confirm the subaltern right debito tempore or did purge the same by procuring resignations ad remanentiam to himself from the Sub-vassals February 12. 1674. Viscount of Kilsyth contra Hamiltoun of Bardowie But recognition was not found against a Pupil upon his Tutors taking Infeftment for him during the Usurpation July 15. 1669. Jack contra Jack Whereby it is clear that Feues have no effect against the Superiour as to the Ward Non-entry more then Tacks 16. Whether the alienation be by Infeftment holden from or of the Vassal there is no recognition with us except in Ward-holdings yea if the holding be dubious and soa probable ground of error of the Vassal as being a payment of Money in the Reddendo with Service used and wont which though truly Ward yet because the payment of Money may render it dubious Craig holdeth in the said Dieg. l. 3. that it would not infer recognition yet this will not give ground to think that alienation of Lands Taxt-ward would excuse from recognition because Ward is more clear and expressed nominatim in that case in it self for the Casualities thereof being Taxed as the Marriage and Ward-duties Which ãâã is but a Liquidation or Location of these casualities when they occur and no alteration of the nature of the Fee and therefore in the said pursuit at the instance of the Lady Carnagie contra the Lord Cranburn it was not found relevant to exclude the recognition that the Ward was Taxed 17. It is also clear that alienation whether by Infeftment holden of or from the Vassal not exceeding the half of the Fee inferreth not recognition so much being indulged to the vassals for his conveniency or necessity but if together or by parcels or by Annualrent the major part be alienat not only that which then was in the vassals person falls under recognition But as Craig holdeth in the forecited place Dieg. 3. l. 3. even the whole Fee So that parcels alienat validly but without the Superiours consent before become void and return But though the vassal grant Infeftments exceeding the half of the fee yet if some of them were extinct before others were granted so that there was at no time rights standing together exceeding the half of the see recognition is not incurred February 23. 1681. Iohn Hay contra Creditors of Muirie But Deeds done by Predecessors and their Heirs or Authors and their Successors were in that case conjoyned Upon the same ground an Infeftment of the see in Liferent would not infer recognition because it exceeds not the half of the value Yea recognition was found not incurred by granting an Infeftment in Warrandice for Warrandice is but a hazard in case of Eviction not equivalent to the half of the worth of the Lands granted in warrandice unless the right of the principal Lands were manifeftly defective Feb. 21. 1623. Cathcart contra
immediat Vassal but by all subaltern Vassals and would not only be competent to the King upon deeds of treason committed against him by his sub-vassals but by all deeds of attrocity done against another Superiour by his sub-vassals as if his sub-vassal should kill wound or betray his Superiour So that the question behoved to return whether there were any feudal Contract or Obligation of fidelity betwixt the Superiour and his Sub-vassals for if that were then Vassals might fall in Recognition by such deeds not only against their immediat Superiours but against all their mediat Superiours though never so many For though the case in question be most odious and unfavourable being rebellion yet it hath its proper punishment introduced by Law and Statute whereby the rebel loseth Life Land and Goods to the King to whom all his Subjects owes fidelity as Subjects though all do not owe the feudal Fidelity as Vassals yet if Recognition take place as to the King it must likewise fall to all other Superiours whatever way the Land be held Ward Feu Blensh or Mortification if they have not a confirmation or consent of the Superiour anterior to the deeds inferring Recognition We shall not therefore anticipat the publick determination of the question if custom hath determined it what will take place for all feudal Rights are local but there hath not yet appeared any case by which a Donatar by his Gift and Presentation being infeft in the Fee of the Kings sub-vassal forefault has excluded these who had real Rights from the forefaulted person before the treasonable fact though much hath been disputed upon the Act of Par. 9. cap. 2. concerning the quinquennial possession of forfaulted persons especially from the last clause thereof bearing that no person presented by the King to feu Lands forefaulted nor any Vassal of any Feuer forefaulted shall be compelled to produce their Acquittances of their Feu-mail or Annualrents of their forefaulted Lands of any year preceeding the forefaulture which doth clearly acknowledge that when the Feuers right is forefaulted his Sub-vassals right is not forefauted yet it was alledged that would not end the controversie by the Act 72. Par. 1457. because these rights of the Sub-vassals of the forefaulted Feuer might have been confirmed by the King specially or generally by the foresaid Act 1457. But the general Confirmation from that Act can have no effect because the the sub-vassals whose Rights are preserved by the Act are not Feues granted by Ward-holders but are subaltern Infeftments granted by forefaulted Feuers And without question the King hath given no consent to any to grant Feues but to Ward-holders only for though the Law hinders them to grant sub-feues or Annualrents yet there being no consent or confirmation by the King thereto Therefore if the King his immediat Vassal be forefaulted all the ancient Feues granted by him of the Lands holden Ward will stand valid as being consented to by the King by the foresaid Statute But the Feues granted by him of Lands holden Blensh or Feu will fall in consequence with his own Feu or Blensh and cannot defend against forefaulture more then Annualrents or lucrative Tacks granted by him which Law doth allow and yet fall with his right unless consented to or confirmed by the Superiour TITLE XXII Prescription 1. Prescription distinguished and described 2. Usucapion 3. The several times required to Usucapion or Prescription by the Roman Law 4. Requisites to Prescription 5. Bona fides requisite to Prescription 6. Whether he who doubteth of his authors Right be in bona or mala fide 7. Evidences of mala fides 8. The Title requisite to Prescription 9. The motives inductive of Prescription 10. Exception where Prescription took no place by the Civil Law 11. The common rule of Prescription with us 12. The beginning of Prescription of personal Rights with the extensions thereof 13. Prescription of Moveables 14. Prescription is reckoned de momento in momentum per tempus continuum 15. Prescription of Heretable Rights 16. Prescription is not extended against the right of Superiority 17. Prescription runs not for Tennents against their Masters 18. Prescription runs not against Minors but there is no exceptions of Mortifications to pious uses 19. In our long Prescription bona Fides is not required 20. The Titles requisite in Prescriptions of Heretable Rights 21. This long Prescription secures Wodsets Infeftments for Security Teinds and long Tacks 22. How far Teinds can prescribe 23. This Prescription extends to Patronage and Offices 24. And to Thirleage and all Servitudes 25. This Prescription excludes all Action and Ground of Reduction and Declarator if the Essentials of the Title appear 26. The several wayes of Interruption of Prescription 27. The way of Interruption by King CHARLES the first as to special rights of the Crown by Letters of Publication 28. The annual prescription of the priviledge of appearand Heirs intra annum deliberandi 29. The biennial prescription of the preference of diligences of the Creditors of Defuncts to the diligences of the Creditors of the Heir 30. Triennial prescription of Spuilzie Ejection Intrusion and succeeding in the vice Merchants-counts House-mails and Removings 31. Quadrennial prescription of the priviledge to reduce deeds of Minors intra quadrennium utile 32. Quinquennial prescription of Arrestments Ministers Stipends Multures Rents of Tennents removed and legal reversion of special Adjudications 33. Septennial prescription of old Apprisings and Summonds for Interruption 34. Decennial prescription of late Apprisings or general Adjudications 35. Prescription of twenty years of Holograph Bonds Missives and Subscriptions in Count-books without Witnesses 36. No prescription runs in Minority except Removings House-mails and Merchants-counts 1. PRESCRIPTION is the common extinction and abolishing of all Rights and therefore is reserved here to the last place the name and nature whereof we have from the Civil Law wherein Prescription is sometimes largely taken for any exception but hath been appropriat to the most common exception in all cases whereby all Actions and Causes are excluded by course of time and so Prescription had no further effect then to maintain the possessor in possession by exception but not to recover possession being lost and could not constitute the right of Property 2. In this Prescription did chiefly differ from Usucapion by the ancient Roman Law that Usucapion did constitute Property and therefore is defined by Modestinus l. 3. ff de Usucapione Adjectio vel acquisitio dominii per continuationem possessionis temporis lege definiti To which description the name doth agree for usu-capere est capere ex usu aut possessione to take or acquire by use or possession But every possession was not sufficient unless it were a possession as Proprietar or for the possessors own use only So detention of any thing in the name and for the use of another and for the possessor only in security as a Pledge or Wodset cannot Constitute property 3. As to the time appointed for Usucapion
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
against the lawful possessor to alledge he had a good Title to these goods and possession of them but he must condescend quo modo desiit possidere by Spuilzie Stealth c. Or that he gave them only in grassing and custody and continued to use Acts ofProperty the reason whereof is because in the Commerce of moveables write useth not to be adhibite and it would be an unseparable labour if the acquirer thereof behoved to be instructed by all the preceeding acquirers as if one should instruct that he bought or bred such goods some years agoe the present possessor behoved either to instruct a progress of them through all the hands they passed from the first owner or lose them which being destructive to Commerce Custom hath introduced this way that possession being present and lawful presumethproperty without further probation unless the pursuer condescend upon a clear probable way of the goods passing from him not by alienation as if they were spuilzied stolen strayed c. Feb 3. 1672. Scot of Gorrenberry contra Eliot In which case the Lybel was only found relevant to be proven by the defenders oath that he had not bought or acquired the goods bona fide Or that the goods were in a Defuncts possession the time of his death February 24. 1672. Semple contra Givan In which case a Defuncts goods were restored albeit they were long possessed after by his Wife and impignorate by her and her second Husband without Confirmation the Children of the Defunct Husband recovered the same from the Acquirer The passing from the Proprietar must be so evidently instructed that there may no probability remain of their being recovered and thereafter alienat Upon this ground it was that Sir John Scot pursuing Sir John Fletcher for a Book delivered to him The Lords found the Lybel not relevant unless it were condescended quo modo the pursuer delivered the same viz. by Loan and would not put the defender to prove gifted but presumed his Title unless the contrary were proven by oath or witnesses Jan. 27. 1665. And in a Process for Jewels at the Instance of John Ramsay contra James Wilson who had them from Mr. Robert Byres the Lords found that the presumptive Title of the defender and his author was elided upon the contrary presumption that Jewels of such value could not be bought bona fide seing the seller was neither Merchant nor Jeweller nor the Jewels fit for his proper use and because it was offered to be proven he took them at his own hand out of the pursuers possession to whom they were impignorat by write by the Proprietar who immediatly went out of the Kingdom The most ordinary and important conveyances are of Lands and Annualrents which pass by Infeftment for perfecting whereof there must not only be a Disposition but also a Resignation in the hands of the Superiour and new Infeftment granted by him to the Acquirer thereupon or by Confirmation or for obedience upon Appryzing or Adjudication For disposition of Lands to be holden of the granter do not transmit the granters Right because he continues Superiour in the direct Dominion but it becomes an Original Right constituting a new subaltern Infeftment Resignation is either in favours of the Superiour himself for consolidating of the Property with the Superiority and therefore is called Resignation ad perpetuam remanentiam Or it is a Resignation in the Superiours hands in favours of the Resigner himself or infavours of an Acquirer and therefore is called Resignation in favorem The first of these is no transmission but an extinction of the Fee and hath been spoken to in that Title The second is not properly a transmission because it passeth not from but returneth to the Resigner yet ordinarly under diverse Considerations as when he resigns from himself and such heirs in favours of himself and other heirs or when he resigns a Ward holding that it may be returned blench or few for the right understanding of Resignations in favorem consider the solemnities requisite thereto and the effect which flow from the several steps thereof For the first a Resignation must proceed upon a Disposition or Procuratory of Resignation having in it the effects of a Disposition which must be in write for the Instrument of Resignation being but the assertion of a Nottar will not be sufficient alone without an adminicle in write and though Resignation propriis manibus can have no Procuratory yet the Disposition whereupon it proceeds must be shown The second step in Resignation is the Act of Resignation it self which necessarly must be by way of Instrument of a Nottar expressing the warrand of it viz. the Disposition if it be done by the resigner propriis manibus or the Procuratory if it be done by a Procurator and that conform thereto the Resigner or Procurator compeared personally before the Superiour or his Commissioners having special warrand to receive Resignations and that the Resignation was made in the hands of the Superiour by Staff and Bastoun delivered by the Resigner or his Procurator to the Superiour as the token or symbol of the thing resigned and that the same was accepted and received by the Superiour or his Commissioners by taking the said symbol in their hands for new Infeftment to be given to the Acquirer and though the Resignation useth to be made by the Vassal or his Procurator on their knees and so is exprest in the Instrument either generally or specially with all humility and that the superiour or his Commissioner use to deliver the Staff as the symbol of the Fee to the Acquirer which is also exprest in the Instrument yet these are not essential but that without the being or expressing of the Instrument will be valid The last step of this transmission by Resignation is the Superiour or his Commissioners giving new Infeftment to the Acquirer the nature and requisites of which Infeftment hath been exprest before in the Title Infeftments The Solemnities of Resignation are so effectual and necessar that the omission of any of them annulleth the Resignation and therefore Renunciation without a formal Resignation though it may be sufficient against the Renuncer yet it is not sufficient to take away Infeftment renunced against singular successors Nor can it constitute any real Right in the person of the Acquirer unless he had aliunde another right standing in his person in which case the Renunciation might exclude the Renuncer or his Heirs to quarrel that right Hope alienation Hamiltoun contra Mcadam The reason thereof is because jura eodem modo destituuntur quo constituuntur and therefore as Infeftments cannot be constitute without an Instrument of Seasine so they cannot be destitute without an Instrument of resignation or at least another Instrument of seasine with the superiours Confirmation or upon his Charter for obedience so that renunciation being personal operats nothing except in the case of Wodsets which are extinguished by a renunciation registrate by the Act 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 ãâã 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 ãâã 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
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
it did so much appear that the Parliament of purpose had omitted it yet in the said case Greirson contra Closburn upon the 21. of July 1636. they did forbear to intimate their Decision and desired the parties to agree And no Composition was found due by an Adjudger having Charged before the late Act of Parliament December 23. 1669. whereby like Compositions are appointed for Adjudication as for appryzing July 10. 1671. Scot of Thirlestain contra Lord Drumlanrig In which case it was found that the Superiour might refuse to enter the Adjudger if he payed his debt but that he was to have nothing for Composition if he did so in the same way as in appryzing by the old Act of Par. 1469. cap. 36. by which that option is given to the Superiour 49. Craig observeth that it was doubtful in his time whether there were a Legal Reversion competent to any renuncing and afterward returning to Redeem Adjudications or Appryzings wherein he favoureth the affirmative but the said Statute Par. 1621. cap. 7. determineth the case and granteth a legal Reversion in favours of these who have posterior Adjudications within the space of seven years or ten years since the Act of Par. 1661 betwixt Debitor and Creditor which is also competent to any Renuncing in their Minority and being restored against the said Renunciation but it is not competent to any other Heir renuncing yet if the Heir though Major find that he hath prejudged himself by renuncing a profitable Heritage he may grant a Bond and thereupon cause within the legal adjudge and redeem the former Adjudications which though to his own behove will be effectual there being so much equity and favour upon his part being willing to satisfie the whole debts 50. It is clear by the said Statute the Lands or Heretage of a Defunct may be Adjudged the heirs renuncing not only for satisfaction of the Defuncts debt but of the heirs own proper debt 51. Adjudications are taken off and extinguished in the same manner as appryzings are by intrometting with the Mails and Duties of the Lands adjudged as is clear from the said Statute And though cases be not so frequent in Adjudications as in appryzings to clear the other ways of their extinction Yet the reason being the same in both there is no doubt but the determination will also be the same 52. The other manner of Adjudications is for making effectual Dispositions or obliegements to Infeft whereupon when the acquirer hath used all diligence competent in Law against the disponer to fulfil the same by obtaining Decreets and Horning Registrat thereupon either against the Disponer or his Heir Law being there defective and cannot make the Disposition or Obliegement effectual the Lords have allowed Adjudications of the Lands disponed whether in Fee or Liferent July 19. 1611. Lord Johnstoun contra Lord Carmichael Spots hic contra Bruce of Airth And thereupon the Superiour will be discerned to receive the Adjudger as was found in the case of an Obliegement to Infeft a Woman in Liferent holden of the Superiour wherein she having used Horning the Superiour was decerned to receive her July 10. 1628. Harris and Cunningham contra Lindsay Feb. 24. 1675. Marion Hamiltoun contra Mr William Chiefly The like in the case of an Heretable Disposition whereupon the acquirer having obtained Decreeet against the disponers heir for Infefting him and used Horning thereupon The Director of the Chancelary was decerned to Infeft the acquirer Decemb 16 1657 Ross contra Laird of May. This manner of Adjudication is extended no further then to the thing disponed and hath no Reversion It requires no Charge to enter heir or renunciation but the adjudger must instruct his Authors right June 24. 1669. Mr. Dowgal contra Glenurchie These Adjudications do not come in pari passu with other Adjudications within the year nor any other with them July 16. 1675. Campbel of Riddoch contra Stuart of Ardvorlick Decemb. 2. 1676. Lady Frazer contra Creditors of the Lord Frazer and Lady Marr. 53. By the late Act of Pavliament anent adjudications there are introduced two new forms of Adjudications the one special of Lands effeirand to the sum and a fifth part more in case the debitor produce his Rights and put the adjudger in his Possession of his particular Lands adjudged But if he do not adjudications are to proceed as appryzings did generally of all the debitors Lands or real rights periculo petentis redeemable within ten years These Adjudications are come in place of appryzings especially the general adjudications which are declared to be in the same condition in all points as appryzings were by the Act of Par. 1661. cap. 62. Except as to the lengthening of a Reversion from seven to ten years So that what hath been said of Appryzings will have the same effect as to general Adjudications but special Adjudications being equitable and favourable will not meet with such strictness This Statute hath taken away the greatest Reproach upon our Law which for every debt indefinitely appryzed every Estate great or smal which had no excuse but that the debitor might redeem in seven years But all debitors being necessitat to appryze within a year or to have no more then the legal Reversion paying the whole debts the power of Redemption came to be of little effect few being able to pay all their debt in one day But now if any debitor complain that his whole Estate is adjudged and no proportion keeped betwixt the debt and his Estate it is altogether his own fault seing he might offer a proportional part and liberat all the rest of his Estate which part is Redeemable also in five years And though a fifth part be added it is no more then the ordinary penalty being an 100. Pounds for a 1000 Merks and 50. Merks for the Sheriff-fee makes 200. Merks being the fifth part of a 1000. Merks and which was sustained in the most favourable cases of Appryzings from the beginning and the Reversion was for seven years Adjudications being executive Decreet the Lords allow them the greatest dispatch and to prevent Collusion whereby some debitors might be postponed by debate and probation till the year pass which would excludethem Therefore the Lords do not suffer Co-creditors to stop Adjudications that they might see for their entress and put the pursuer to abide the course of the Roll unless they produce an Entress upon which the Ordinar will hear them immediatly without going to the Roll Jan. 22. 1681. Earl of Dundonald contra Dunlop and his Creditors Neither is the Superiour suffered to propone defences Jan. 13. 1675. Kinloch of Gourdie contra Mr. James Blair and James Strachan Yea the Lords sustained the establishment of the debt in the same Lybel with the Adjudication July 26. 1676. Alexander Boyd contra Boyd of Pinkill But if the debitor himself appear the Cause goes to the Roll and if there be prior adjudgers defences proponed against the debt or adjudication
Assigned before the Fact and payed before process Seing intimation was not before the Criminal fact Hope Chalmers and Gordoun contra Gordoun Thirdly These Debts or Deeds of the Denunced do not simplie affect the Escheat Goods unlesse they be Consumat or lawful Diligence done before the up-taking of the Escheat Goods by the Thesaurer or Donatar Yea before general Declarator for that being the Intimation of the Donatars Gift it renders it to him to be a compleat valid Right after which no Creditor not having a real Right or Legal diligence before can have any Access unless the Donatar by back-band to the Thesaurer be otherwise obleiged And therefore a Donatar having obtained general Declarator was preferred to a Lawful Creditor arresting after Declarator February 22. 1628. Anderson contra Gordon But the Question remains how far Lawful Creditors whose Debt is before the Denunciation or Criminal Fact using diligence thereafter but before Declarator or obtaining Assignations intimat or Dispositions cled with Possession before Declarator may thereby effect the Escheat Goods For answer thereunto though in rigore Juris the goods and debts of the Denunced fall to the Fisk as they are the time of the Denunciation or Criminal Fact And the Declarator according to the nature of all Declarators doth not constitute the Fisks Right but declares the same to have been from the Denunciation or Criminal Fact albeit as an Assignation it doth constitute the Donatars Right Therefore the real Right passing to the Fisk without possession or at least the priviledge of the Fisk might in the full Extent thereof exclude all posterior diligences or deeds Yet such hath been the Royal benignitie of our Kings and there Favour to Lawful Creditors that in this they accompted id solum nostrum quod debitis deductis est nostrum For which the Thesaurer hath been accustomed to prefer Creditors giving Gifts of Escheat to them before others and in taking Back-bands from them in favors of other Creditors Yea by long custom Creditors whose debts were anterior to the Denunciation or Criminal Fact doing diligence before Declarator are preferable to the Donatar Spots escheat James Nisbit contra James Fullarton February 24. 1637. Pilmure contra Geggie In this case the escheat belonged to a Lord of Regality and the Arrestment was laid on before the gift of escheat But where the Donatars Gift was in payment of his own debt he was preferred to an Arrester arresting the Rebels goods after the gift but before Declarator February 27. 1623. Thomson contra Laird of Murckil but voluntary deeds of the Rebel after Rebellion as Assignations not intimat before Declarator for satisfaction of Debt due before Denunciation or Criminal Fact are not preferred to the Donatar Hope assig Sr. James Stewart contra Alexander Wardlaw John Clerk contra William Naper and James Cramfoord contra John Mcaul And though an Assignation not being intimat before Rebellion was preferred to the Donatar yet it was in consequence of a Decret of Council decerning that Assignation to be made and so not voluntary So a Donatar was preferred to an assigney whose assignation bore a cause Onerous and was before Declarator but after Rebellion December 6. 1631. and February 26. 1633. Conheth contra Earlston Decem. 18. 1629. Laird of Caprington contra Cuninghame February 2. 1632. Lindsay contra Nisbit Where the Assignation bore not a cause Onerous Yet a Lawful Creditor obtaining Disposition from the partie denunced cled with possession was preferred ibid. Johnston of Corhead contra Johnston In like manner a disposition made by the Rebel for a Just debt before the Giftor Declarator was preferred to the Donatar Here it was not exprest that the debt was before the Rebellion February 10. 1635. Mosman contra Lockhart Where there seems some difference in the Decisions wherein these points seem clearest 1. Dispositions and delivery of Goods because moveables are more easily transmissible in favours of Commerce and so have always a presumptive Title upon Possession So that if the Goods be bought in a Mercat there seems no Question or if bought out of Mercat from a Rebel getting the price which accresseth to the Fisk unlesse the Buyer was in mala fide And though getting the Goods in Satisfaction of a debt before the Rebellion be more questionable then a present Exchange of the Goods and Price the former decisious favour that also The Lords did lately find that a Rebel selling part of his Corns to provide necessaries for Sowing of the ground the Crop whereof fell to the Fisk the bargain was valid 2. Legal Diligence upon Arrestment being compleat before Declarator are valid though after Rebellion Yea the Decisions favour even the inheat diligence if the Arrestment was before declarator upon a debt before Rebellion And it was so found February 19. 1667. Jsobel Glen contra John Hoome But voluntary Assignations seem not effectnal if they be not compleat by Intimation before Rebellion and though they be if Payment or Satisfaction either in Money or renewed Bands innovating the Rebells Band be not obtained before Rebellion the Donatar was found preferable but otherwise the Creditor by Precept Assignation or otherwise getting payment of his debt prior to the Rebellion and obtaining payment before Declarator was found secure against the Donatar February 11. 1675. William Veatch contra Executers of Ker. But though actual Payment were obtained by Assignation after Declarator it will not Secure the Creditor December 20. 1676. inter eosdem 17. The matter of Escheat being thus cleared we come to the gift thereof and Declarator thereupon A gift first Sealed was preferred to an other first signed in Exchequer albeit so near in diligence as coming that same day to the Seals December 6. 1662. Stewart contra Nasmith Gifts of Escheat are in effect the Assignations thereof by the Fisk whereof the Intimation is the Declarator So that a Posterior gift with a Prior general Declarator is preferable to a prior gift with a posterior Declarator But where there is yet no Declarator Preference is by the first Citation if the same was followed with Lawful Diligence And therefore a Posterior Gift whereupon Citation was prior but three days was preferred to a prior Gift Jan. 31. 1635. Laird of Renton contra Laird of Lambertoun If there be no Citation or Declarator the Donatars possession is sufficient alone and will preferr a posterior Gift though granted to the Rebel himself being before any Diligence upon the Prior Gift And if two gifts be produced as enteresses without any Diligence on either the first gift is preferable 18. Gifts of Escheat as all other gifts by the King are null if granted before the Casuality fall as an erection of kirk-Kirk-lands in a temporal Lordship was found null because a commendatar stood then in the right and did not Resign or Consent And therefore a posterior Erection to that Commendatar upon his own Dimission was preferred February 24. 1666. Sr. Robert Sinclair contra Laird of Waderburn And so a
his Council in any matter to be inquired before them Par. 1564. cap. 129. Purchasers of benifices at the Court of Rome are ordained to be denunced as Traitors to the King Par. 1471. cap. 43. Par. 1488. cap. 4. Par. 1540. cap. 119. So forgers of the Kings Coin and home-bringers thereof incurr the lose of Life Lands and Goods Par. 1563. cap. 70. Saying of Mass resetting of Jesuits Seminarie Priests and traffiquing Papists And these themselves are lyable to Treason Par. 1592. cap. 120. Par. 1607. cap. 1. Raising of Fire wilfully or burning of Houses or corns whither folk be therein or not is declared Treason Par. 1592. cap. 146. Landed men committing or resetting Ryot or Robbery incurr the pain of Treason Par. 1587. cap. 50. And generally Resetters Maintainers and Assisters of declared Traitors commit Treason Par. 1592. cap. 144. Accuser of others of Treason if the accused be acquit commit Treason Par. 1587. cap. 47. 30. Forefaulture confiscateth the forfaulted persons whole Estate without any access to his Creditors Yea without consideration of Dispositions Infeftments or other Real Rights granted by the Forfaulted Person since or before the committing of the Cryme of Treason for which he was forfaulted which fall and became null by Exception Hope Forfaultur Viscount of Rochester contra Teuents of Callavrock July 14. 1610. Campbel contra Lifnories Spots Conjunctfie Crawfoord contra Laird of Murdiestoun unless these rights have been confirmed by the King as Superiour or Consented to by him It only remains dubius whether Feu Infeftments granted by Forefault Persons before committing of the Cryme be also annulted by the ãâã And the Act of Parliament anent Feus Par. 155. cap. 72. Should not only defend them against Recognition and the Casualities of Superioritie but even against Forfaultur it self it being therein declared that the King will Ratifie the saids Feus The like is to be understood of other Superiors So that though de facto they be not confirmed Yet the Declaration and Obleigment of the Statute standeth as a Confirmation thereof or at least as an Obleigment upon all Superiors against which they nor their Donators cannot come This is to be understood while ãâã are allowed by Law vide Title Infefints 34. Sect. It was so decyded February 12. 1674. Marques of Huntlie contra Gordon Cairnlorrow November 16. 1680. Campbel of Silver craigs contra Land of Auchinbreck and the Earl of Argyl not only because the Act of Payliament 1587. Imports a Confirmation of Feus granted thereafter but also because Forefaulture is by Penal Statute and not by the Feudal Right like unto Liferent escheat which returneth the Fie to the Superiours but with the burdens put thereupon by the Vassal whether Feu blensh Ward or by Annualrent or Tack And therefore when any Person is Forefault that is not the Kings immediate Ward Vassal his Estate both Propertie and Superiority falls to the King but with the burden of all Real Rights constitute by the Vassal Yet Forefaultur of the Kings immediat Ward Vassal proceedeth upon Crimes inferring Recognition And therefore returns his Ward Lands to the King as they came from the King free of all burden So that the Act of Parliament 1457. Which unquestionably secures against Ward and Recognition must also secure Feus against the Forefaultur of the Vassal granter of the Feus but will not secure any other Subalterne Right without the Superiours consent as a Blensh Infeftment Jan. 13. 1677. Marques of Huntlie contra Laird of Grant 32. Tacks also being Necessary and Profitable are not excluded by Forfaultur Maitland December 14. 1570. Home of Manderstoun contra Tenents of Oldhamstock Leslie of Wachtcun contra The like as to Tacks for a competent Dutie but not in Tacks for grassams January 28. 1674. General Dalziel contra Tenents of Caldwall 33. But by the Act of Par. 1644. Forfaultur was declared to be without prejudice to all Persons not accessary to the Cryme of the Superiour of the Rights of Property of any Lands Wodset or others holden by them of the Forefault Person or of the payment of their Just Debts or relief of their Cautionries our of the Forfaulted Estates which is now rescinded by the general Act rescissary Par. 1661. cap. 15. 34. Forefaultur could not be pronunced in absence of the Forefault Person by the Justice Gerneral but only by the Parliament So that no Certification of the Justice could reach Lands but only Moveables So July 8. 1662. William Yeaman contra Mr. Patrick Oliphant Neither could it extend to Heritable Bands November 31. 1671. Anthonie Hag contra Moscrop and Rutherfoord But now the Justices may proceed to Forefault absents in case of open Rebellion and rysing in Arms Par. 1669. cap. 11. 35. Because of the defficulty the King or his Donatar might have in knowing the Rights of Foresaulted Persons by Labouring the same with their own Goods setting the same to Tenents and up-lifting the Mails and Duties as their Heritage and so being reput Heritable Possessors for the space of five years immediately preceeding the process of Forefalture the lands so labored or possessed pertain to the King and his Donatar though they can produce no Heritable Right or Title thereof in the Forefault Person For tryal whereof Commssion may be granted under the testimonial of the great Seal to such persons as shal be thought fit by the advice of the Secret Council to take cognition by an Inquest what Lands were brooked by the Forefault person as Heritable possessor thereof so commonly reput and esteemed by the said five years space with power to call before them all parties pretending interest which being retured to the Chancelarie ad perpetuam Remanentiam shall be a sufficient Right Par. 1584. cap. 2. This right was sustained to a Donatar though nearest of Kin to the Forefault Person and presumeable to have his Right July 11. 1623. Maxwel contra Westeraw But here the Donatar was made to depone that he had just reason to affirm that the Rights were wanting Hope possession inter eosdem This right was not elided though it was offered to be proven that the forefault Persons Right was reduced in foro contradictorio upon Recognition before his Forefaulture Feb. 20. 1611. Hairstons contra Ramebel So the said 5. years possession being repute Heritable possessor infers presumptionem juris de Jure of the forefaulted persons Right which admits no contrary probation As to the forefaulted persons Right if the Quinquennial Peaceable and Lawful Possession be proven But the probation thereof by Inquest will not exclude a contrary probation by Reduction of the possession of others within the 5. years And if the possession be not Lawful and Peaceable but interrupted or Vitious the Statute takes no place for by possession Lawful peaceable possession of the forefaulted Persons must be understood And if any person have moved Action within the 5. years for taking away the Rebels right and possession they will be heard after the forefaulture as
the Neices name seing he filled it not up till the granters Sicknesse July 22. 1678. Birnies contra Polmais and Brouns But Death-bed was not found to hinder the recalling of a Disposition made by a Grand-father to his Oye and delivered to a third Party in Leige poustie if it should appear that the delivery was not Simply to the behove of the Oye whereby it became Irrevocable but Conditionally that the Disponer might recal it for eviden ce whereof it was proven by that third Parties Oath That the Defunct on Death-bed called for it and he delivered it and that the Defunct on Death-bed delivered two Blanks for dividing the Right in the first Disposition which he delivered with his said first Disposition to a Nottar And ordered the filling up of the one half to the Heir the other half to a second Son but for further clearing the Partie to whom the first Disposition was first delivered was appointed to be examined what the Defunct exprest when he delivered the first Disposition to him Decem. 9. 1676. Janet Ker contra Ninian Ker. But thereafter the third Partie not being found to be examined The Lords found that there being nothing proven exprest at the delivery The recalling and the re-delivery did import that the delivery was not Simple to the behove of the Oye making it Irrevocable But that it was Conditional to be delivered to the Oye if the Disponer did not recall it and that his recalling of it for a special effect to divide the same betwixt his Heir and the second Son was effectual both against his Oye to whom he first Disponed and as effectual against his Heir as to the one half albeit the Revocation was onDeath-bed Seing thereby the Heir had no prejudice but benefit being formerly Excluded by the Disposition to the Oye delivered in Liege Poustie January 25. 1677. inter eosdem 30. But onlyFree deeds onDeath-bed are thusReduceable for if there were an equivalent Cause Onerous which was truly Imploy'd upon the Defunct or might affect the Heir it is not to the Heirs Prejudice and so not Reduceable thus the Reason of Death-bed was eleided because the Band quareled was offered to be proven for Furnishing truly Delivered to the Defunct July 13. 1632. Pollock contra Fairholme The like of a Discharge granted by a Bastard after he was Infected of the Plague against the Donatar of the Bastardry November 23. 1609. Marr contra Auchinleck In all these Witnesses are Sustained to prove the Cause Onerous in the write And likewise a Band granted on Death-bed being proven for a Cause Onerous in part viz. Droggs and Service to the Defunct on his Death-bed was sustained pro tanto and Reduced for the rest January 7. 1624. Schaw contra Gray But a Liferent granted to a Wife on Death-bed and a Liferent-Tack of Teinds of the Lands Liferented were not reduced Hope Teinds Lady Dunlap contra Laird Dunlap The reason whereof is observed to have been because the Husband before Sickness was bound to Infeft his Wife in Lands or Anualrent equivalent Nicol. de haereditarijs actionibus inter eosdem 31. AsDeeds on Death-bed prejudge not the Heir So deeds in Testaments though done in Leige Poustie have no more Effect then on Death-bed And it is not habilis modus by Testament to dispone any Heritable Right December 14. 1664. Colvin contra Colvin Death-bed is not competent by Exception but by Reduction January 11. 1666. Grizell Seatown contra Dundas But in Declaratorie or Petitory Actions as Recognition it is receivable by Exception July 20. 1669. Barcley contra Barcley Or in a Reduction it is competent by Exception or Reply February 3. 1672. Barbara Hoom contra Bryson A third difference is that Successors in Moveables or Executors are not lyable Passive for the Defuncts Debts in Solidum but Heirs are Though they farr exceed the Value of the Inheritance without the benefit of an Inventar And though Craigs Opinion is that Heirs may Renounce even after their Entry if the Heritage appear overburdened The course of Decision since his time hath cleared the Contrary 32. Because Heirs entring cannot Renounce there is Annus deliberandi allowed to them by Law in which they may abstain from entering and Immixing themselves with the Heritage and then they are not conveenable for the Defuncts debt upon charges to enter Heir or otherwise but if they enter or meddle sooner they are lyable This Annus deliberandi is ordinarily accounted a year from the Defuncts Death which was so accounted though during a great part thereof the Heir remained unborn February 7. 1610. Knows contra Menzies But the Contrary was found thereafter that the year was accounted from the Birth of the Posthumus Heir that the benefit of Deliberation might be profitable to his Tutor in his Name Spots Heirs Livingstown contra Fullertown If the Day of Compearance be after the Charge to enter Heir and after the year it will be Susrained June 27. 1667. Dewar contra Paterson In which case it was found that even Actions Real as Reductions ãâã c. which require no Charge to enter Heir are not Competent within the year of Deliberation because in these the Heir cannot Defend without the Hazard of behaving as Heir 33. Succession in Heritable Rights in Scotland are either by the will of the Fiar or by Law Provistone Hominis or Legis Heirs by the ãâã of Law are called Heirs of Line as befalling by the Line of Succession appointed and known in Law all other Heirs do Cross or Cut that Line and therefore are called Heirs of Tailzie from the French word ãâã to Cut whence Craig conceiveth this Tailzied Succession hath been first denominat amongst the French and Normands and thence being brought into England by the Normand Conquest both in Custom and Name hath been Derived to Us Yet it is liker to have come to us Immediatly from France with which we keeped greater Intercourse then with England of Old And our Tailzies at least to Heirs Male are Ancienter than the English which begun but from the Famous Law called the Second Statute of Westminster in the Reign of Edward the First of that Name of the Normand Line Heirs of Tailzie are also called Heirs of Provision which terms are Equiparat both comprehending all Heirs which are not according to the Line or Course of Law and among others Heirs Male and Heirs of Marriage Yet our Stile doth ordinarily distinguish them so that where there is no alteration from the Lineall Heirs Male and where there are severall Substitutions of certain Persons or Lines failling others by the tenor of the Infeftment they are Specially called Heirs of Tailzie but when there is an Alteration of the Lineal Succession yet not Simply to Heirs Male nor to divers Members of Tailzie they retain the common Name of Heirs of Provision as is most ordinar by Contracts of Marriage providing Lands to the Heirs of the Marriage whereby the Heirs Lawfully Procreat betwixt the
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. ãâã 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 ãâã 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 ãâã 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. ãâã 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 ãâã 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 ãâã ãâã and so could not make the Receivers Lucrative Successors ãâã 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 ãâã 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
trafficking Burgesses and take themselves to a Country Life their heirs will have heirship moveable And therefore semel civis semper civis is not presumed Neither semel paerlatus semper praelatus for if a beneficed Person were deprived or demitted before the Death his heir would have no heirship moveable 10. The second Defense against Intromission with heirship moveable and which is also competent against Vitious Intromission is That the Defunct died Rebel and his Escheat was gifxted and declared before intenting of the Creditor's Pursuit June 10. 1663. Gordon of Lismoir contra Keith June 10. 1674. Lady Spenserfield contra Hamilton of Kilbrachmount December 22. 1674. Heirs of Seatoun of Blair contra Sr Alexander Seatoun And It is not necessary to alledge That the apparent heir had any Right or Tollerance from the Donatar For the Exception is equiparat to Executors confirmed against Vitious Intromission whereby Vitious Intromission is excluded albeit the Intromission was before another was confirmed Executor if the Confirmation was before intenting of the Creditor's Cause But it is no relevant Defense That the Defunct died Rebel and so had no moveables but that they were confiscat Neither was it sufficient that the Escheat was gifted not being also declared before the Creditor's Pursuit As was found in the said two first Cases 11. The third Defense is That the apparant Heir intrometted by a Gift to himself or to his behoofe or by a Right or Tollerance from a Donatar These being prior to the Creditor's Pursuit although posterior to his Intromission albeit not declared are relevant because the Donatar thereby is in possession and needs no Declarator Feb. 26. 1663. Cuthbirt of Drakies contra Monro of ãâã June 10. 1663. Gordon of Lismoir contra Keith July 4. 1674. Mr. William Innes contra George Wilson June 10. 1674. Lady Spenserfield contra Hamilton of Kilbrachmont Feb. 10. 1676. Grant contra Grant 12. The fourth Exception is When Moveables belonging to a Defunct remain in his House whereunto his apparant Heir hath Right by Infeftment wherein the Defunct had his Liferent or Tollerance if the Heir enter in possession of the House if at his entry he represent to any competent Judge that there are Moveables in or about the House belonging to the Defunct which he desires to be inventaried or that such as cannot be preserved may be sold that the price may be made forthcoming to all parties having interest if Inventary or Sale be made by warrant of that Judge the continuing of these Moveables in the House or the Sale of those which cannot be preserved will not infer Behaving as Heir Yet the making use of the things in the Inventary or the Sale of that which is not warranted yea the ommission out of the Inventary of Moveables of any considerable value was found to infer Behaviour January 25. 1632. Helen Scarlet contra John Paterson 13. The other ordinary member of Behaving as Heir is by Intromission with the Rents of Lands or Tiends whereunto the Defunct had Right by Infeftment or entering in possession of these Lands and Tiends unto which the apparent Heir would succeed which is the most direct Behaviour as Heir and is only competent against such persons as might be Heirs in that whereinto they immix themselves And so an Heir of line poslessing or intrometting with the Rents of Lands provided to Heirs male or to Heirs of Tailzie or Provision or the Intromission of these with the profits of Lands or Tiends befalling to Heirs of line will only infer Restitution or Reparation but will not infer a general passive Title making the partie lyable to all the Defunct's Debts 14. There are many Defenses which use to be proponed against this species of Behaviour As first it was an ordinary custom to shun this passive Title that the apparant Heir granted a Bond of purpose to adjudge the Defunct's Right upon the apparant Heirs Renounciation and then take Right to the Adjudication till the Lords by an Act of Sederunt Feb. 28. 1662. did declare that if apparant Heirs should in time coming take Right to any Appryzing or Adjudication of their Predecessors Rights for their own Debt and did ãâã thereby whether before or after expyring of the Legal they should be lyable as behaving as Heirs which hath always since been followed And therefore no Defense for such Rights will be sustained albeit it were a true Debt of the apparant Heirs and not a simulat Bond granted of designe to adjudge or apprise Neither is it a relevant Defense That the Lands or Teinds were appryzed or adjudged from the Defunct albeit Infeftment had followed thereupon if the heir apparant intromet without Right or Warrant from the Appryser or Adjudger within the Legal Feb. 21. 1663. Henrie Hamilton contra William Hamilton But it is a relevant Exception That the apparant heir's Intromission or possession was by Right from an Appryser or Adjudger though the Legal was not expired unless the Sum were fully satisfied by Intromission or otherways January 10. 1662. Barclay contra Laird of Cragievar The like though the apparant heir continued to possesse for some time after the Apprysing was satisfied by Intromission Feb. 26. 1663. Cuthbert of Drakies contra Monro of Foulis Yea Intromission with the Rents of the Defunct's Land by his apparant heir waselided by a Tollerance from a Donatar of Recognition albeit not declared till after his Intromission the apparant heir paying the single value of his Intromission July 17. 1666. Thomas Ogilvie contra Lord Gray But a Tollerance from Apprysers after their Intromission was not found relevant July 11. 1671. Sr. George Maxvell contra Maxvel Yet the apparant heir's Intromission was elided because the Defunct's Rights were improven though after the Intromission March 22. 1628. Roderick Farquhar contra Campbel of Kingingcluch And an apparant heir's Intromission was elided by a colourable Title though not valid whereby the heir of a Marriage being entered and infeft as heir to her Mother yet her Infeftment being reduced and her Father being found Feer in a dubious provision of Conjunct-fee the heir so served was not found liable as behaving as heir to her Father but only quoad valorem of her Intromission July 12. 1671. Adam Gairns contra ãâã Sandielands But it was not elided because the apparant heir past by his Father and was infeft as heir to his Good-sire though his Father was infeft that colourable Title was not sustained the apparant heir being in mala fide having the Evidents in his hands November 23. 1671. Rorieson contra ãâã Yet Behaving as heir was not inferred by the heir apparant's intrometting with the Rents of Lands which his predecessor had disponed in trust to a third party for the behoofe of the apparant heir and whereupon the Intrusted was infeft January 14. 1662. Nicol contra Home of Plandergest But Intromission by the apparant heir was elided by a Disposition by a Defunct to the apparant Heir's Son his Oye though without
doth remain and both are compatible Hope Successor Lucrative Gray contra William Burgh 2. This passive Title is not only extended to Dispositions of Lands bearing expressly a lucrative Title as for Love and Favour c. but though the Narrative thereof bear expressly a Cause onerous which being betwixt the Disponer and his apparant heir proves not and therefore the Cause onerous must be proven aliunde Vide Title Reparation upon Circumvention where the Narrative of Writs amongst conjunct and confident Persons proves not the Cause to be onerous And though there be a Cause onerous instructed it will not be sufficient unless it be equivalent to the worth of the Lands to substain it against Reduction but if the Cause onerous be considerable the heir will not be lyable simply or personally but the Right may be reduced and the heir may be lyble in quantum est lucratus And therefore an apparant heir having accepted the benefit of a Disposition and Infeftment granted by his Predecessor to a third Party but to the apparant ãâã behoofe the Lords before answer ordained the Cause onerous of the Disposition to be instructed reserving to their consideration how far the apparant heir should be lyable personally thereby January 14. 1662. Nichol Harper contra Hume of Planergest The like of a Disposition of Lands by a Mother to her apparant Heir though it did bear a Sum of Money which did not prove betwixt Mother and Son February 15. 1676. Patrick Hadden contra George ãâã The like was found of a Disposition by a Father to his Son and apparant heir though the Son offered to prove it was for equivalent onerous Cause seing the Disposition it self did bear for love and favour and other good Considerations November 22. 1671. Beaty contra Roxlurgh But Bonds of Provision by Parents to Children infer no passive Title though the Children be Heirs apparant As when the Bonds are granted to the eldest Son or Bonds of Provision or a Tocher to Daughters when there are no Sons though in that Case the Daughters might be esteemed heirs apparant although truly they be not for a man is ever understood to be capable of having a Son and therefore Daughters are little more heirs apparant than Brothers Yet Bonds of Provision or Tochers are reducible by anterior Creditors if the Defunct had not a visible Estate sufficient for these Portions and his whole anterior Debts And therefore accepting a Tocher did not make a Daughter lyable as lucrative Successor though there was no Son yet the Daughter and her Husband were found lyble to the Father's anterior Creditors for what was above a competent Tocher suteable to the Parties December 23. 1665. Dame Rachel Burnet contra Lepers Neither will taking Bonds in the name of the Daughters or assigning Bonds to them make them lyable as lucrative Successors And yet the accepting of Assignations to heretable Bonds by a Father to his eldest Son in which the Son would succeed as Heir may inferre this passive Title December 2. 1665. Edgar contra Colvil But where the Father in his Contract of Marriage provided his Son to several Bonds which before any Creditor pursued were payed and cancelled and it did not appear by the Contract whether they were heretable or moveable the Lords did not sustain the passive Title but found the Son lyable in quantum ãâã and did presume the Bonds to be heretable unless they were proven to be moveable January 7. 1679. Hamilton of Burdowie contra Mr. Andrew Hay But a Disposition of Lands to the eldest Son was found to make him lucrative Successor although by his Father's Contract of Marriage with his Mother his second Wife the Father was obliged to infeft the eldest Son of the Marriage in the said Lands which did import a Succession seing the Obligement contained no determinate time and so might be performed by the Father any time in his life November 29. 1678. Hagens contra Maxwell The like was found in a Disposition of Lands or Annualrents to the eldest Son of the Marriage seing these were provided to the Heir of the Marriage February 22. 1681. Grizel More contra Ferguson The Disponer's Bairns Portions are not a Cause onerous being granted after the Creditors Debts albeit undertaken and secured by the apparant Heir bona fide before any Diligence at the Creditors instance not being payed before the Pursuit ibid. because the Heir may suspend upon double Poynding and will not be made to pay both the Bairns and Creditors 3. This Title is extended to Dispositions granted in the apparant Heirs Contracts of Marriage which in many respects is accounted a Cause onerous July 8. 1625. Gray contra William Burgh Where the Son was not liberat though he offered to renounce the Lands he had by Contract And it was found that Lands being disponed and resigned by the Father in favour of the Son by his Contract of Marriage though they were for the present wadset and disponed with that burthen and thereafter redeemed by the Son by his own means so that there remained nothing in the Father but the Superiority and the ãâã yet the Contract of Marriage was found onerous as to the Wife 's Luerent And in respect the Son was Minor and presently revoked the Disposition and renounced all other Rights except that of the Wadset which he had redeemed he was liberat of the passive Title and the Lands declared redeemable by any Creditor anterior to the Contract January 14. 1634. Mr. David Courtney Minister contra Weems of Lothoker In the like Case where Lands were disponed by a Father to the Son in his Contract of Marriage for a Tocher payed to the Father for some Debts and Bairns Portions far within the worth of the Land the Son was not found lyable in solidum as lucrative Successor nor yet the Pursuer put to a Reduction but the Son was in hoc processu put to compt and pay the superplus of the true price of the Land June 17. 1664. Lyon of Murask contra Bannerman 4. This Title takes place not only in universal Dispositions of the Predecessor's whole Estate but a Disposition of any part thereof is sufficient seing the least as well as the most is praeceptio haereditatis 5. This Title is extended also not only to Dispositions made to and accepted by the immediate apparant Heir but also to the mediate apparant Heir so that he be alioqui successurus by the course of Law necessarly as what is granted to the eldest Son of the apparant Heir Because the ground of this Title being to prevent Deeds in favour of the Disponer's Successors prejudicial to the Disponer's Creditors whose Debts are anterior the reason holds as much where he dispones to his Oye who by the course of Law is to succeed to him as to his Son 2. It is Praeceptio haereditatis in the Oye aswell as in the Son And therefore the Rule in this Title is not that the Accepter be that Person who
would succeed at the time of the Disposition and so may seem to be immediat apparant Heir pro tempore for so a Disposition by one Brother to another or to a Brother's Son the Disponer for the time having no Children will not inferre this Title November 22. 1662. Lawrence Scot contra David Beswell of Auchinleck Nephew to umwhile Auchinleck December 22. 1674. Heirs of Seatoun of Blair contra Sir Alexander Seatoun The like though the Disponer was an old man the time of the Disposition and had little hope of Issue December 17. 1632. Lady Spenserfield contra Laird of Kilbrachmont The reason is because the Brother or Brother's Son is not alioqui successurus by the course of Law while the Brother's Children are in spe and therefore such are never called apparant Heirs neither is the presumption in them that the Defunct would in prejudice of his Creditors adventure simply to dispone to such while he had hope of Issue but all this holds in Oyes And it was so decided January 29. 1639. Lady Smeatoun contra Richardson of Smeatoun where an Infeftment was granted by the Good fire to the Oye reserving his Son 's Liferent And in the like Case the Father who was but Liferenter and his Oye Feer by the Grandfather's Disposition was found lucrative Successor February 23. 1637. Lightoun contra Laird of Kinaber But this Decision was stopped to be further heard 6. But here occurreth the Question If the Disposition be anterior to the Debt contracted but the Infeftment posterior to the said Debt quid juris The ground of Doubt is that though the Defender had a prior Disposition yet by the Infeftment only he was Successor seing Lands pass not by Dispositions but by Infeftments and therefore he was clearly Successor post contractum debitum and also ex causa lucrativa 2. If this were not the meaning the intent of the Law would be frustrate for it were easy to make Dispositions and to keep them up and in the mean time to contract Debts when the Creditors could not know the Debitor's condition and so contracted bonafide This Case was not decided but the like Case was formerly decided negativè that the Infeftment though posterior to the Debt did not inferre this Title being upon a Disposition anterior to the Debt February 23. 1637. Lightoun contra Laird of Kinaber The like was found where there was an Obligement in a Contract of Marriage to dispone Lands prior to the Debt contracted albeit both the Disposition and Infeftment were posterior to the Debt and did not bear expressly in implement of the Contract which was presumed seing no other Cause was showen July 27. 1678. Thomas Ferguson contra Lindsay of Wauchope For answer to the contrary Reasons the first is upon misapplication of the words post contractum debitum which are not to be referred to Successor thus successor post contractum debitum ex causa lucrativa but successor ex titulo lucrativo qui titulus est post contractum debitum So that if the lucrative Title be not after the Debt this Title takes no place As to the other reason the same inconveniency will be of Dispositions to Strangers which being keeped up Creditors may contract bona fide And yet Inhibition before Infeftment will not be effectual unless it preceed the Infeftment and the Disposition which will also be effectual against the apparant Heir But if there be fraud in keeping up such Dispositions which will be easilier presumed in the person of the apparant Heir than a Stranger it will be sufficient upon the common reason of fraud to reduce the Infeftment though the general passive Title be not inferred The like was found where there was an Obligement in a Contract of Marriage to dispone Lands prior to the Debt contracted albeit both the Disposition and Infeftment were posterior to the Debt and did not bear expressly in implement of the Contract which was presumed seing no other Cause was showen July 23. 1678. Thomas Ferguson contra Lindsay of Wauchope And lucrative Successor was not found inferred by the Infeftment of a Father to his apparant Heir after the Debt contracted seing there was an anterior Obligement in the apparant Heir's Contract of Marriage to grant the Infeftment and Inhibition thereupon Nicol. de haereditariis actionibus March 31. 1626. Ker contra Sterling 7. This Title can take no place first where the Party to whom the Right is granted is not alioqui successurus in that same Right because it cannot be praeceptio haereditatis where there can be no haereditas And so a Disposition to an heir of Tailzie of Lands not provided to that heir of Tailzie cannot inferre this Title though it may be reducible as without a Cause onerous Neither will a Disposition of tailzied Lands to an heir of line inferr this Title For in that case it cannot be praeceptio haereditatis albeit the Disposition will be reducible as without a Cause onerous But there is more reason that Rights acquired originally by Predecessors in name of their apparant heirs cannot infer this Title because the Predecessor himself never being Feer in that Right the apparant heir could not be his Heir therein Neither can such Rights be reducible by the Act of Parliament 1621. because the falling thereof will not make the Fee return to thePredecessor who never had it but the same can only be reached by a Declarator That it was acquired by that Predecessor's means after the Debt contracted and therefore ought to be affectable as if it were in the person of the Debitor or his heir which hath frequently been found relevant TITLE XXX Executorie Where of Testaments Codicills Legacies Relict's part Bairns part Dead 's part Confirmations and Office of Executorie 1. The Romans carfeulnesse to preserve the freedom of Testing 2. The ancient form of Testing amongst the Romans 3. The modern form of Roman solemn Testaments 4. Their nuncupative Testaments 5. Their military Testaments 6. Requisits for Roman Testaments 7. How far Sons in familia could Test. 8. Persons who could not Test. 9. Persons who could not be institute or substitute 10. Restriction of the freedom of Testing in favour of Children 11. The Legittimes ofChildren 12. The Falcidian portion 13. The difference of the Legittime and Falcidian 14. The Trebellianica 15. Fidiecomissa 16. Codicills 17. Institution of Heirs 18. Substitution 19. Substitutions vulgar and pupillar 20. Legacies 21. Legacies are void if the Legatar die before the Testator or if the Testament be void unless there be therein a codicillar Clause 22. The Kinds and Effects of conditional Legacies or Fideicommissa 23. Special Legacies 24. Conditions adjected to Legacies in Fideicommissa 25. The Inventary 26. Collation 27. Jus accrescendi 28. The Power of Testing with us may be restricted by Contract or Portion 29. It is restricted to Moveables and extends to no heritable Right 30. Wherein the Office of Executors consists 31. The nearest Agnats are Successors in Moveables to the
Tinto Where the reason is rendered because before the Act of Parliament 1617. Defuncts might exhaust all their Dead's part by Legacies and that Act was not to better Executors but to restrict them The like January 15. 1674. Pattoun contra Leishman The like Spots Executors of Moncrief contra Moncrief And seing the said Act bears Strangers being nominat shall have but a Third of the Dead's part therefore the Wife will have no more but her Third Or if one of the Children should be nominat or the nearest of Kin for none of these are Strangers and so have nothing for their Administration but their Expenses November 28. 1676. John Ker contra Jean Ker. But concerning Executors dative this Statute gives them no Share of Dead's part 54. The order of Confirmation is that the Commissaries having emitted Edicts affixed on the Church-door where the Defunct died calling all Persons having interest to confirm then according as Parties compear and compete they prefer the greatest interest First the Executor nominat then the nearest of Kin. Thirdly the Relict Legatars and Creditors and all failing the Procurator fiscal or such who are surrogat by him who enjoyed the whole Dead's part till their Right were reduced on a better Title But since not only the Wife and Bairns who may call all Executors to accompt for their parts but also the nearest of Kin have been admitted to call the ordinary Executors dative to an accompt without Reduction But before the said Statute all Executors had the whole profit of Dead's part as the Narrative of it bears And yet of old it appears the Executors had litle benefit if there was any Debt heritable or moveable for they only were lyable for a year and thereafter to find Caution to relieve the Heretor Par. 1503. cap. 76. But these Executors dative have not a Third of Dead's part for their Administration though they be Strangers for the Statute gives that only to Executors nominat being Strangers But the Fiscal by the Trust committed to Bishops to have a care of Defunct's Executory and the Quota which is the twentieth penny of free Geer should execute the Executory where none are nominat by the Defunct And therefore Executors dative are his Assigneys surrogat in place of the Fiscal November 28. 1676. John Ker contra Jean Ker. This interest of Children as nearest of Kin is never taken away unlese they renunce or discharge not only the Bairns part or Portion natural but all that they may succeed to by their Father's Death To come now to the Office of Executory and what power Executors have activè and how far they are lyable passive we must distinguish Executors They are either nominat or dative constitute by the Commissaries and these are preferred according to their several interests in the Executory And these who are Creditors of the Defunct preferred hoc nomine are called Executors Creditors Executors are also principal or ad ommissa malè appretiata or ad non executa And all these may be either Sole Executors or Co-executors All Executors are obliged to give up Inventary upon Oath bearing that they have omitted nothing known to them nor have misapretiat the same and must find Caution to make the Executory foorthcoming to all Parties having interest They use also to protest that what further comes to their Knowledge they may ãâã or add to the Inventary which they may still do before another do Diligence to confirm a Dative ad omissa malè appretiata or before they be pursued for Super-intromission 55. An Executor nominat in England was admitted to pursue in Scotland upon a Confirmation there without Inventary in respect of the Custom there not to make Inventary Feb. 16. 1627. Lawson contra Bartholemew Kello But in that Case an Executor dative confirmed in Scotland having found Caution was preferred to the Executor nominat and confirmed in England Spots Executors inter eosdem An Executor being decerned though not confirmed may pursue not only the Defunct's Wife and Bairns to give up Inventary but also Strangers Novemb. 11. 1609. Heriot contra Heriot But till he be confirmed or have Licence he cannot pursue for Payment Decemb. 12. 1622. Cathcart contra Cuninghame 56. Executors intending to confirm use to get a Licence to pursue which ordinarly bears excludendo sententiam Which was sustained though general to pursue for all the Defunct's Debts naming none Hope Executors Farquhar contra Law But the Obtainer must be first decerned Executor for till an Edict be served and an Executor confirmed there can be no Title given to pursue Yet before Confirmation the Licence may be granted If the Decreet be extracted on such Licence before Confirmation the Decreet is null Hope Executors John Aitkin contra Richardson Nicol. de acquirenda amittenda hereditate Janet Tweedie contra Magdalen Lawson Licences use not to be granted after the principal Confirmation and therefore was not sustained as a Title December 14. 1621. Haliday contra Yet it was sustained for pursuing a Debt particularly exprest therein being dubii juris January 21. 1624. Carnousie contra The like where the Licence was granted to a Creditor surrogat as Executor Creditor ad omissa June 30. 1665. Stevenson contra Crawford Feb. 21. 1668. Scot of Clerkingtoun contra Lady Clerkingtoun Executors confirmed have Right to call for and uplift all the Defunct's Moveables confirmed The Executors of a Donatar ofa Liferent Escheat was found to have Right to the Bygones of that Liferent before the Donatar's Death and his Heir to the Profits of the Liferent after the Donatar's Death albeit there was no Declarator in his Life January 28. 1671. Keiry contra Nicolson But Sums secured by a condition in a Reversion that no Redemption should be till these Sums were payed where the Disposition was not granted for these sums as the Cause thereof though they affect the Ground disponed yet remain a moveable Right befalling to Executors Feb. 18. 1676. Thomas Wauch contra Doctor Jameson 57. It useth to be controverted betwixt the Heir and Executor about the Rents of Lands and others which run according to the legal Terms So if the Heretor or Liferenter survive Whitsunday and Martinmasse their Executors have that whole year albeit it be Victual payable at Candlemasse because the last legal Term is Martinmasse And it was so decided even in the Case of a Miln Feb. 21. 1635. Laird of Westnisbet contra Laird of Swintoun The like was found albeit the Entry of the Tenent was at Whitsunday and the conventional Terms of Payment of the Miln Rent were the first Half at Candlemasse and the second at Whitsunday That Liferenter surviving Martinmasse being the last legal Term had the Rent of the Miln both payable at Candlemasse and Whitsunday after that Martinmasse July 20. 1671. Guthry contra Mackerstoun But if they live only till Whitsunday then their Executors have the Half of the Rent Victual or Mony if they live till the Term-day though
Redeemable to that Partie during his Life as it is ordinarily adjected when that is meaned January 9. 1662. Earl of Murray contra Laird of Grant The like of an Annualrent though it bore only to be payed yearly and not perpetually or heritably or to heirs Feb. 2. 1667. pourie contra Dykes And a Substitution mentioning only a Person substitute without mention of Heirs was found competent to that Persons Heirs January 7. 1670. Innis contra Innis 6. Heirs have the benefit of heritable Rights not only whereupon Infeftment hath followed or which by Destination are heritable or requiring Infeftment to their accomplishment as heritable Bands bearing Clause of Infeftment for these bearing only Clause of Annualrent are declared Moveable by and since the Act of Parliament 1641. cap. 57. Revived Par. 1661. cap. 32. Of which in the last Title So also are Reversions Pensions Tacks without necessity of being entered Heir June 17. 1671. John Boyd contra Hugh Sinclair July 9. 1675. Hoom contra Johnston of Oldwells And all Rights having a Tract or Course of time after the Defuncts Death In these Cases where the Defuncts Right is Temporary and runneth out by a certain Course of Time that time runneth whether the Defuncts Heir be entered or do Possesse or not as Tacks Pensions or Annuell Prestations during so many Years And therefore these require not Service or Solemnitie but that Person who might be Served may continue or recover the Defuncts Possession and his Possessing makes him lyable passive as Representing the Defunct Neither needs there any Service of Children nominatim substitute immediately to their Parents but if they be Substitute in the Second place a Service must be used to instruct that the Heirs appointed in the first place did fail July 21. 1676. ãâã of Drumelzier contra the Earl of Tweddel What Rights are heritable and what moveable vide Title Real Rights 7. Heirs have also Right to Moveable Heirships and to all Obleigments though the matter be in moveable Rights if Executors be expresly secluded otherways if the matter be moveable and Heirs only be exprest but not Executors yet Executors will not be Excluded because Heir is a General Term comprehending Exectors Hope Ejection Sr. Lewis ãâã contra Tenents The special Interest of Heirs are according to their several kinds viz. Heirs of Line and of Conquest heirs Portioners heirs Male and heirs of Tailzie and Provision 8. The Interest of heirs of Line is that they are heirs Generally not only because they may be Served by a General Service but chiefly because they must Generally represent the Defunct So that what cannot be claimed by a special Title either as being Conquest or Specially provided by the Tenor of the Infeftment befalleth to the heirs of Lyne And therefore in dubious cases what doth not appear to belong to other Heirs appertaineth to these in respect of whom heirs Male and of Tailzie and provision are accounted as Strangers and may come against the Defuncts Deeds in favours of the Heirs of Line But the Heirs of Lyne cannot come against such Deeds in favours of others because as heirs of Line they are reputed as one Person with the Defunct and so are obleiged to maintain and fulfil his Deeds not done on Death-bed It was so found in the Case of an heir of Tailzie against an heir of Line Spots Earl of Hoom contra And as heirs of Line have generally the Benefit so they have more effectually the Burden of the Defuncts debts which ordinarily reach them in the first place So that oft-times the heirs of Line have little or nothing free We shall not need to be Special what befalleth the heirs of Line being to show particularly what befalleth to the other heirs For what remaineth belongeth to the heirs of Line only Heirships moveable belong only to heir of Line and not to heirs of Tailzie January 27. 1668. Collonel Montgomrie contra Stewart 9. Heirship moveable is the best of every kind of moveables belonging to the Defunct which the heirs of Line may draw from the Executors whereof there is an ordinary list The reason of this Heirship moveable is because by our Law by primo geniture excludeth the Defnncts other nearest of Kin in Heritage wherethe nearest of Kin Succeeds alone in moveables and as they have no share with the heir in heritable Rights so most sitly the heir hath no share with them in moveables but hath only the best of every kind which therefore is called heirship moveable In which the Defunct cannot in his Testament or any other Deed done on Death-bed prejudge his heir as was shown last Title but if the nearest of Kin be all Femals they are both heirs ãâã Executors or if but one Male he is both heir and Executor in which cases there is no heirship moveable drawn Heirship Moveable is established by the Act of Parliament 1474. cap. 53. Ordaining the Heirs of Prelats Barons and Burgesses to have the best of every kind according to the Burrow Lands and so was found not to belong to the Heir of a Defunct who had only heritable Bands being neither Prelat Baron nor Burgess Hope de haered Todorig contra ãâã But the heirs of Prelats was Extended to other Beneficed Persons as was found in the heirs of the of Person of Dingwal Novem. 28. 1623. William Rig contra Mckenzie And likewise the heirs of Barons was extended to any Persons heirs dying in Fee of Lands though not erected in a Barrony Hope de haered Keith contra Mckenzie Todoirg contra Purdie heirship Moveable was found competent to the heir of a Person who died only Infeft in an Annualrent July 19. 1664. Elizabeth Scrimzeor contra Executors of Mr. John Murray But heirs of a Burgess was found not to extend to an honorarie Burgess who died not Trading or Working in the Burgh Spots heirs James Leslie contra Hugh Dumbar Heirship Moveable is not always a single thing but goeth sometimes by Pairs and sometimes by Dozens as in Spoons So the heirship of Oxen was found to be a Yoke and not a single Ox Nicol. de haereditatis petitione July 20. 1610. Black contra Kincaid And heirship taketh place only in corporibus but not in quantitatibus as in Money Cloath Mettal c. And so the Shell of a Salt-pan which was out of use was accounted but Iron and not to fall under heirship Moveable Had. January 19. 1611. Reid contra Thomson 10. Heirs of Conquest though they be also heirs of Line as befalling by the Course of Law and not by the tenor of the Infeftment and therefore were set down as Lineal Successors in the preceeding Title Yet because heirs of Conquest have only place where there is an Elder and Younger Brother or an Elder and Younger Father Brother c. and their Issue to succeed In which case the Law alloweth two heirs the immediat Elder succeedeth in Conquest and the immediat Younger in the heritage Therefore the one is specially called the
Infeftment or by a Tack to the apparant Heir's Husband though expired before the Defunct's Death as being continued per tacitam ãâã January 16. 1667. Reid contra Salmond Behaving as Heir was inferred by the apparant Heir's entering in possession of a Coal-heugh whereof the Defunct had Tacks for Terms to run albeit the apparant Heir took a new Tack June 26. 1610. Atchison contra Laird of Cockpen The like though the apparant Heir took a Gist of the Defunct's Escheat who had an unexpired Tack of the Lands and pretended to possess as Donatar to the single Escheat June 28. 1610. Crawford contra Cockpen 15. Behaving as Heir was also inferred by the apparant Heir's giving a Receipt of the Defunct's Charter Chest and keeping it two Years without Protestation or Inventary June 28. 1670. Ellis of Southside contra Carse 16. Behaving as Heir will also be inferred by Uplifting or Discharging Sums Principal or Annual which would befall to the Party Heir or by doing any Deed that might transmit the Defunct's Right But it was not found inferred by the apparant Heir's Renouncing to be Heir in favour of the Heir Male to whom their Father had disponed seing they gave no Right thereby hurtful to Creditors though they got a Sum for their Kindness and willing Renounciation July 5. 1666. Lawrence Scot contra Heirs of Auchinleck Neither by the apparant Heir's getting benefit by a Transaction with a Party having Right from the Defunct granted on Death-bed and being obliged to acquire the Defunct's Debts and apprise thereon and to communicate the benefit of the Apprising unless a Deed had been done communicating any Right of the Defunct July 19. 1666. Margaret Nevoy contra Lord Balmerino But Behaviour was not inferred by the apparant Heir's taking out of Brieves seing the same were not served June 28. 1670. Ellis of Southside contra Carse Neither was it inferred by proponing Payment of the Defunct's Debts and succumbing which is only effectual as to that Process July 16. 1629. Murray contra Ross. January 21. 1675. James Tailzifer contra John Corsan Neither was it inferred by the apparant Heirs voluntary Payment of their Predecessor's Debt January 26. 1628. Commissar of Dunkel contra Abercromby 17. There is the same ground for excluding this passive Title unless it were established against the apparant Heir in his own life as to exclude vitious Intromission which hath frequently been repelled when not established in the Intrometter's life 18. It remains now to consider Whether Behaving as Heir being a vitious passive Title will import more than if the apparant Heir had been actually entered which may occur in two Cases First where Heirs-portioners behave themselves as Heirs whether they will be lyable in solidum or only pro rata 2. Whether those who behave themselves as Heirs will have the same benefit of the order of Discussing and Relief as if they were actually entered As to the first Case the Behaviour of Heirs-portioners cannot oblige them in solidum but in so far only as if they were actually entered Heirs which is always pro rata parte according to the number of the Heirs-portioners non per capita sed per stirpes But as it hath been yet undetermined whether Heirs-portioners may be lyable for more than their share of the Debt not exceeding their share of the benefit to which they have succeeded there is no question but if Heirs-portioners behave as heirs they would be made lyable quoad valorem of their Intromission if it did exceed their share As to the other Case Behaving as heir being a vitious passive Title they will not have the ãâã of Discussing which is only competent to heirs lawfully entered Yea they will not have Relief from the heirs who are lyable before them because they have in their Person no active Title Yet it is in arbitrio judicis to ordain the Creditor on satisfaction to assign his Right by which the heir behaving may indirectly attain Relief as Assigny by the Creditor This favour will not be refused unless the manner of Behaviour be very odious as when it is fraudulent by concealing the Immixtion or that the Creditor himself having an other Interest may be prejudged by his Assignation And therefore heirs behaving if distress'd for moveable Debts they have no direct recourse against Executors And if the Executory be mean so that there be small provisions for the Wife and Children the Creditor would not be ordained to assign And it may so fall out in other Cases The same Reason may occur where heirs of Conquest or heirs Male of Tailzie or Provision behave if the prior heirs who are nearer of Blood have little benefit and provision TITLE XXIX Lucrative Successors 1. The rise of this passive Title 2. It takès place though the Disposition bear Cause onerous ãâã it be otherwise instructed 3. It is extended to Dispositions in Contracts of Marriage in some Cases 4. Lucrative Dispositions of any part of the Heritage inferre this passive Title 5. This Title is extended to Dispositions made to Oyes though then not immediate apparant Heirs but not to Brothers though none then nearer 6. Whether it suffiseth to infer this Title that the Infeftment was after the Debt or if the Disposition whereon the Infeftment proceeds must also be after 7. Cases in which this Title takes no place THERE is no Nation hath been more favourable to Creditors or more studious of their satisfactions than this which hath anticipate all Conveyances Devices and Frauds prejudicial to Creditors either in favour of singular Successors by simulate Assignations or Dispositions without equivalent onerous Causes or in favour of apparant heirs that they might in no way enjoy their Predecessors ãâã without satisfying their Debt which hath given the rise to this passive Title whereby apparant heirs accepting Dispositions from their Predecessors of their Heretage wherein they would have succeeded or any part thereof are made lyable to all their Predecessors Debts contracted before such Disposition or Right And the acceptance thereof is accounted praeceptio haereditatis and as an Immixtion with the Inheritance makes the apparant heir to represent the Defunct passivè Yet with this temperament that he shall be lyable only to the Debt contracted before the Disposition or Right made to him by the Defunct in which Right he might have succeeded Wherein apparant heirs are most expediently differenced from the other singular Successors without onerous Causes that these are not ordinarly personally lyable except in so far as they have disposed of such Rights as were fraudulently disponed to them in Trust and in which they were interposed Persons to the behoof of the Disponer or his Children but these Rights are alwayes reduceable at the instance of anterior Creditors But because such Fraud is more incident to apparant Heirs therefore these are personally lyable for the whole anterior Debts and the Right granted by them may also be reduced upon the Statute 1621. Yet the personal Obligement