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-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
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 〈◊〉 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
his Marriage which was dissolved within year and day by the Wifes death was found void seing the Father persisted not therein but Infeft his second Son July 15. 1678. Lord Burley contra Laird of Fairny And a Tocher payed within the year was 〈◊〉 to be repayed without any Deduction for the Wifes intertainment during the Marriage but only for her Cloathes which were before the Marriage and her Funeral Charges which was after the Marriage was Dissolved February 23. 1681. Janet Gordoun contra Thomas Inglis But Gifts given to the Married Persons by the Friends of both were divided equally the Marriage being dissolved within year and day January 14. 1679. Wauch contra Jamison But if a living Child was born the Marriage was found valide though both Mother and Child died within the year Spot Husband and Wife Stuart contra Irving The reason why the Child must be heard cry is to make certain its lively ripeness and not to leave it to the conjecture of the Witnesses and therefore it sufficed not though they did declare that the Child was living immediately before the Birth and appeared lively and full ripe when it was born but that it was stifled in the Birth as was found in the case of Sandelands and Thores yet a Wifes Infeftment was found valid till her Tocher was repayed though the Marriage Dissolved within the year July 20. 1664. Petrie contra Paul But where a Marriage continued a year and a part of the next day after the year the Tocher was found not to return Nam in favorabilibus dies ceptus habetur pro completo February 25. 1680. George Waddel contra George Salmond 16. Marriage Dissolveth by Divorce either upon wilful non-adherence or wilful Desertion or by Adultery and the party injurer loseth all benefit accrueing through the Marriage as is expresly provided by the foresaid Act of Parliament concerning non-adherence 1533. cap. 55. But the Party injured hath the same benefit as by the others Natural Death as was found March 21. 1637. Lady Manderstoun contra Laird of Rentoun But if Divorce follow upon Impotency all things return hinc inde because in effect there was no Marriage as was found Earl of Eglintoun contra Lady Eglintoun 17. By the Dissolution of Marriage there ariseth to Married Persons not only these Rights which by voluntar Contract are Constitute to either and which are not proper here but also these which by Law and Custome are Competent without any special Convention or Covenant and these are either upon the part of the Husband or more frequently upon the part of the Wife To the Husband is Competent the Life-rent of the Wifes Heretage which because it is peculiar unto these Nations it is said to be the Courtesie of Scotland or England To the Wife ariseth her share of the Moveables which is the half where the Man hath no Children in familia and the third where there are such and her Terce which is the third part of his Lands during her Life But of Reversions Heretable Bonds Dispositions or Rights of Lands without Infeftment and of Teinds or Tacks or Tenements within Burgh the Relict hath no Terce These Rights of Terce and Courtesie fall in to be considered amongst the Feudal Rights and the Relicts third or half of Moveables in the Succession of Moveables wherein it is a Concomitant and regulat according to that which is proper Succession either of Children or others though as to the Wife it be rather a Division of that Community of Goods Moveable that was Competent to the Married Persons during the Marriage and therefore shall be insisted on no further here but left to these places And we shall proceed to the next kind of Obediential Obligations and Natural Rights which interveen betwixt Parents and Children Law and Custome hath favoured and priviledged Wives in many cases propter fragilitatem sexus they are free from obliegements for sums of Money and from personal Execution by Horning or Caption if it be not for Criminal Causes their Contracts of Marriage are preferable to other Personal Creditors February 8. 1662. Thomas Crawford contra Earl of Murray their share of their Husbands Moveables is not burdened with the Husbands Heretable Debt December 28. 1668. Margaret Mckenzie contra Robertsons July 19. 1664. Elizabeth Scrimzour contra Murrays yea gratuitous moveable Bonds granted by a Husband payable at his death whereby the whole Executry would be exhausted and the Wife have no share having no other provision the same were not found to affect the Wifes share But otherways such Bonds granted in Leige Poustie without fraud were found to come off the hail Head and not off the deads part only December 8. 1675. Thomson contra Executors of Eleistoun And a Wife was found not excluded from her share of her Husbands Moveables by a gratuitous Disposition by her Husband to his Brother of all sums that he should have at his death January 10. 1679. Grant contra Grant In like manner the Infeftments and Provisions of Wives are effectual although the Tocher which is the mutual cause thereof be not payed she not being oblieged therefore her self though the Contract bore that the Tocher being payed it should be imployed to the Wifes use July 5. 1665. Mackie contra Stuart The like though the Contract bore that the Husband should imploy the Tocher for the Wife in Life-rent albeit the Tocher was lost through the Fathers Insolvency June 11. 1670. Margaret Hunter contra Creditors of John Peter The like though the Contract bore that the Wife should have no benefit while the Tocher should be fully payed if the Tocher could be recovered by the Husbands diligence November 21. 1671. Mary Menzies contra John Corbet On the same ground a Contract of Marriage bearing the one half of the Tocher to the Wife failing Children albeit conceived passive and not that the Husband was to pay the same or do diligence therefore yet the Husband was found lyable to pay the half of the Tocher although it was not recovered unless he had done the diligence of a provident man which was found implyed in his Duty and Trust as Husband the Wife being in potestate viri July 14. 1676. Jean Lockhart and Raploch her Spouse contra James Bonar And though Husbands have no communion in the Habiliments and Ornaments of the Wife which cannot be affected for his debt yet she hath her share of the Habiliments of the Husband which falls in his Executry and he is oblieged to pay all Accompts for her Habiliments suitable to her quality But where the Wife had an Alimentary Provision for her Habiliments Ornaments and her other Uses the Husband having furnished them and received that sum was not found lyable to repay the same to her Executours February 2. 1667. Executours of the Lady Piltoun contra Hay of Balhousie Wives have not only a half or third of their Husbands Moveables when they survive but have their Aliment till the next Term after the Husbands
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
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. 〈◊〉 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
contra Fleming The like found of a Liferent which carried the Right of a Reversion quo ad the Liferenters life Decem. 5. 1665. Beg contra Beg. 2. There is no question of this accression when the disponer disponeth for all Right he hath had or shall acquire which is a general assignation or disposition of any Right superveening if the debate fall betwixt the disponer and successor there is also little question if the Right disponed have exprest or implyed absolute Warrandice as being for a Cause Onerous In which case if the question be betwixt the disponer and successor he who disponed for an equivalent Cause importing his acknowledgement of having an absolute Right cannot cloath himself with any posterior Right which would infer warrandice against him if it were in another person and therefore that personal objection excludes him it being in his own person Neither is it questionable that if the Disposition or Assignation be limited as being only to a particular Title or generally for any Right the Disponer hath or bearing warrandice from his own Fact and Deed then if he acquire a posterior Right he may make use thereof against that person to whom he disponed much more may any singular Successor of his and therefore in the case decided July 19. 1664. betwixt Dam Elizabeth Dowglas and Sir Robert Sinclar her Spouse contra the Laird of Wedderburn anent the Teinds of Kello and Kimmergem whereof the Earl of Home common author gave a Tack to Wedderburns predecessor with warrandice from his own deed and any right the Earl then had being reduced he did thereafter acquire a new Right from Coldinghame and thereupon granted a Right to William Dowglas of Evla to whom the said Dam Elizabeth Dowglas is heir which supperveening Right was found not to accresce to Wedderburn to defend his Tack seing he had not absolute warrandice but from his own deed only But the main question is when the contraversie is not betwixt the author and the party to whom he dispones but betwixt the singular Successor of that author and that party to whom he had disponed before in which case the personal objection upon the warrandice hath no place and oftimes the right superveening requireth special solemnities and cannot be transmitted without these as Resignation Confirmation Seasine yet even in these cases reason and the Lords Decision extended the rule so that the superveening Right ipso facto accresces without any new solemnities but if the necessar solemnities have preceeded when there was no right whensoever the Right superveens it is drawn back as if it had been in the time of the former solemnities fictione juris and so if a Superiour acquire the Right of Forefaultry of his Superiour the same ipso facto accresceth to the sub-vassals and cannot be made use of against them Spots Conjunctfees Malcolm Crawford contra Mordistoun The like was found Feb. 15. 16. 1665. Boid of Penkil contra Vassals of Carsluth In which case the Vassals were ordained to pay their share of the Composition of a Ward But where the superveening Right befell to the Authors appearand Heir and was by him disponed to another before he was entered Heir in that case the Authors appearand Heir obtaining gift of the Liferent-escheat of Lands disponed to Vassals the said Liferent was not found to accresce to the Vassals because the appearand Heir was denuded thereof in favours of another before he was Heir July 5. 1611. James Skeen contra Vassals of Athol this Rule was so far extended that a supervenient Right by Decreet of Reduction and Improbation acquired by Swintown having right to the Lands of Brimstoun was found to accresce to the Earl of Lauderdail being restored July 13. 1664. Earl of Lauderdale contra Heretor of Wolmet But where a person having a disposition of Lands did Insest another in Liferent himself never being Infeft did assign the Disposition to a third partie who was thereupon Infeft that Disposition was not found to accresce to the Annualrenter because his Author was never Infeft thereupon June 29. 1676. James Brown contra Smith It is the common opinion that if a party grant Infeftment before he be infeft himself and he thereafter Infeft it accresceth to that party whom he Infeft before if the question be betwixt them but I have not observed it directly decided quid juris in these 〈◊〉 if a person not infeft do give Right to two parties and thereafter be Infeft to which of the two his superveening Infeftment will accresce Or if he Infeft one when he is not Infeft and thereafter another when he is Infeft which of these will have right but it seems the first Infeftment in both cases will be preferred because she common Authors Right accresceth ipso facto Yet if the common Authors Infeftment proceed upon the diligence of any party it may seem the same will only accresce to him who is the procurer of it yet even in that case it was found to accress to the first Right with absolute warrandice June 21 1671. John Nielson contra Menzies of Enoch But now to return to what is special in Dispositions 3. A Disposition is the transmission or conveyance of real Rights from the Disponer to his singular Successor not in contemplation of the Disponers Death for such are comprehended among successions from the dead as Legacies Donations mortis causa c. A Disposition is said to be a conveyance and so it is taken not for the Dispositive act of the Will only but whatsoever else is requisite to compleat the conveyance as Tradition Resignation Possession though a Disposition is oftimes taken as distinct from these for the more clear uptaking of conveyances of real Rights Consider first what is requifite to transmit them by the Law of Nature without any positive Law or Custom and next what by these is requisite to transmit the several Rights As to the first it hath been shown in the Title real Rights how far Dominion and Property is competent by the Law of rational Nature and it cannot be doubted but that though there were no positive Law nor Custom that the rational Creature is naturally instructed how to Dispone and Alienate his own the power of Disposal being the Characteristick of Dominion which is natural to man being created Lord of the Creatures The question then is by what act men may naturally exercise the power of Disposal which can be no act of the Understanding that being only contemplative and nothing active nor operative for Constituting or Transmitting of Rights but it must needs be an act of the Will for by it Rights are both acquired Relinquished and alienate There may be three acts of the Will about the Disposal of Rights a resolution to Dispone a Paction Contract or Obligation to Dispone and a present will or consent that that which is the Disponers be the Acquirers Resolution terminats within the Resolver and may be dissolved by a contrary resolution
Creditor to the debitor by delay of the term June 20. 1678. Scot of Burn-foot contra Falconer and Edmistoun 31. Albeit the Lords do not ordinarly modifie Penalties after appryzing yet if they be exorbitant they do modifie the same and all Termly Failzies as they did in the said case of Orrock of Balram and Francis Irvin 32. Appryzing was sustained upon a sum payable without Requisition albeit there was no Charge preceeding the appryzing July 21. 1666. Mr. John Thomson contra Mcgutrig The like though the Bond bore annualrent before 1641. seing there was no Infeftment thereupon or Requisition therein Jan. 14. 1679. Farquhar of Finian contra Robert Stuart 33. And an appryzing was sustained though the Lands appryzed were not filled up in the Letters of appryzing or special Charge nor in the Executions because the Messenger who execute was Judge in the Appryzing which relating the Denunciation of the Lands particularly and Charging the appearand heir to Enter thereto in special was found a more solemn Execution then any Execution a-part Jan. 16. 1680. John Brown contra Nicol. 34. An appryzing was sustained without producing the Letters of appryzing being in anno 1636. But the Instructions of the debt was found necessary to be produced being within Prescription February 11. 1681. James Kenuay contra Thomas Crawford Yea an appryzing was sustained upon a Bond payable upon Requisition though the appryzing made no mention of the Requisition the Instrument of Requisition being produced 35. And though the Dispensation to appryze was neither at Edinburgh nor the head Burgh of the Shire but a place upon the open Fields and upon a count of a great rain the Messenger did not appryze that day but adjurned the Court of appryzing til the next day July 12. 1671. the heirs Mr. Thomas Lundie contra the Earl of Southesk 36. And an appryzing of the ground-right of Lands and all other right belonging to his debititor the Superiour being Charged thereupon was preferred to a posteriour appryzer who appryzed particularly an annualrent out of the Lands which was the only Right of the common debitor November 21. 1673. Mr. John Fairholm contra Rentoun and the Countess of Levin 37. Appryzings are elided by satisfaction or payment without necessity of Renunciation Resignation or Reduction as in the case of other Infeftment July 25. 1626. Lord Lovat contra Frazer The reason is because appryzing being but a legal diligence for security of the sum which ceassing it falleth without other solemnities and the dobitors own Infeftment stands valid without Renovation which with the Infeftment upon the Appryzing stood but as a paralel Right for security so that all returned adpristinum statum and amongst the rest the Casualities of the Superiority if they were taken off by the appryzing and therefore an heir not entering but being Chargeed if he satisfie and redeem the appryzing he will be in non-entry till he be received of new 38. Appryzings are excluded and qualified with the Back-bonds and obliegements of the appryzer as in personal Rights which are valid against singular Successors as a back-bond that an apprysing should not be prejudicial to anothers parties Right was found relevant against the appryzers singular Successor the Kings Donatar of the appryzers forefaulture July 31. 1666. the Earl of Southesk contra Marquess of Huntly The last and most ordinary Exstintcion of appryzing is by Intromission with the Mails and Duties of the appryzed Land over and above the annualrent for these are imputed in the principal Sum by the Statute Par. 1621. cap. 6. which is also extended to Minors having the priviledge after the ordinary legal of seven year But it was not provided for in the said Statute that the appryzer should be countable for his Intromission thereafter which is therefore provided for Par. 1641. cap. 67. which though it was neglected and not revived Par. 1661. yet the Lords sustained the same as now in Custom twenty years and more Feb. 18. 1663. John Ross contra Mckenzie But the Tenor of the said first Statute being that the quantities of the Mails and Duties shall extend to as much as will satisfie the whole principal sum and annualrents thereof composition to the Superiour and annualrent thereof and expenses in deducing the appryzing In that case the appryzing is declared to expyre ipso facto So that if any part thereof remain and the debitor be so negligent as not to use an Order and count and reckoning within the legal but suffer it to expire the appryzing will stand valid and carry the Right of the whole Lands and will not be extinct in so far as satisfied proportionally Hope Confirmation Doctor kincaid contra Halyburtoun which was so found where a part of the sum was satisfied by payment Novem. 28. 1623. Mr. Robert Craig contra Wilson But if the remainer be very small the Lords may be the more strict in modifying pryces and if that be not sufficient a small remainder will not take away the Right de minimis non curat Lex Intromission is not only extended to the Rents and Profits of the appryzed Lands but to the pryce of any part thereof sold by the appryzer within the Legal Jan. 14. 1669. Mckenzie contra Ross. And ansappryzing was also found extinct by the Intromission of him to whom the appryzer granted Back-bond declaring the appryzing to be to his behove and that against a singular Successor who thereafter was Infeft upon the appryzers Resignation July 12. 1670. Kennedy contra Cunninghame and Wallace Yea An appryzing was found excluded as being satisfied by the debitor and retired by him with a blank Assignation thereto lying by him at his death though his Son thereafter filled up his name therein which was instructed by the sons oath and witnesses ex officio Feb. 27. 1666. Creditors of the Lord Gray contra the Lord Gray But an appryzing was not found extinct by Intromission where the appryzer payed to his debitor the superplus of the rent above his annualrent before the leading of any other appryzing yet where any order of Redemption is used before the expyrie of the legal the appryzing was found extinct by intromission after the course of the legal July 7. 1676. John Edgar contra Patrick Milu The like was found in respect of an order used by a second appryzer and was sustained though the first appryzer had acquired right to an order of Redemption by a third appryzer used against the second appryzer which was not found to hinder the second appryzer to declare the first appryzing satisfied by Intromission during the legal or the order but prejudice to the third appryzer or to the first appryzer having Right from the third appryzer to Redeem the Lands from the second appryzer by satisfaction of the sums due to him July 18. 1676. Gordoun of Seatoun contra Watson Yea an appryzing being both against the Principal and Cautioners Estates an order of Redemption used by the principal debitor was found to keep the appryzing