T R E A r 1 S E ON THE DEEDS AND FORMS USED IN THE CONSTITUTION, TRANSMISSION, AND EXTINCTION OF FEUDAL RIGHTS. BY ALEXANDER DUFF, WRITER TO THE SIGNET. EDINBURGH: BELL & BRADFUTE, 12. BANK STREET. MDCCCXXXVIII. Printed by James Walker, C. James's Court, Lawnmarket, Edinburgh. TO THE HONOURABLE LOUD CUNINGHAME, OXE OF THE SENATORS OF THE COLLEGE OF JUSTICE. My Lord, I beg to offer my warm acknowledgments for the honour which your Lordship has done me in regarding favourably =4he effort I have now made to treat of the practice of Feudal Conveyancing. Although I have entertained the natural, but very -Selfish wish, to place my work under the patronage of one whose ""character, station, and knowledge of the subject would recommend it to the favourable notice of the profession, I may be permitted to add, that I desire, by this testimony of my respect and esteem, in some measure to evince my feeling of the courtesy and kindness uniformly experienced by me in the intercourse which I have had the honour to hold with your Lordship. I remain, Your Lordship's obliged and most obedient Servant, ALEXANDER DUFF. PREFACE. The plan of the following Treatise embracing a short account of the origin of the different subjects to which it relates, a historical introduction is thus rendered unnecessary. Mr Ross, in his published lectures, led the way in a branch of legal practice, which had formerly been esteemed wholly mechanical, to a more intellectual view of the subject. By means of his inquiries a large store of information on the origin and history of our system of deeds, highly valuable to the lawyer, the student and the practical conveyancer, was collected and bequeathed to the profession. Although the shape of his work is now felt to be inconvenient in reference, its authority remains unimpaired. The Treatise of Mr Robert Bell, on the convey- ance of land to a purchaser, is of a more practical nature, and has long been the most useful Manual in the library of the conveyancer. Aware of the large amount both of knowledge of principles and of practical experience which these learned persons brought to bear on their subject, I cannot but feci much diffidence, in offering to the profession a work on the same branch of practice. Having ventured to extend the limits by which Mr VI rUEFACE. Bell's work is narrowed, I am fully sensible of the risk which I have incurred, both in regard to the omis- sion of some important particulars, and an erroneous conception of others, and I must throw myself on the indulgent consideration of the profession. I had long entertained the opinion that a work, combining a practical examination of the clauses of deeds with a copious reference to authorities, was much wanted by the profession, and it is to be regretted that the subject has not been taken up by an abler and more expe- rienced hand. The work was nearly completed before the appear- ance of the valuable Report of the Law Commission on the subject of conveyancing. The important su2:o;estions of the Commission will demand much and deliberate consideration. The propositions con- tained in the conclusion of the Report will be found in the Appendix, (No. II.) I have treated of the forms used in the attestation of writs, in a preliminary or introductory chapter. The subject is one of great importance and of considerable extent ; and it appeared to me that this deviation from the ordinary plan of the work admitted of a more combined view of the present state of our practice in this branch of the inquiry. The arrangement of the work is by CJiapterSy Titles and Sections^ these last being occasionally subdivided into Articles. The numbers of the sec- tions are carried on to the end of the work ; and it is necessary to observe, that references from one part of the work to another are by the section, or the sec- tion and article, not by the page. The section with PIIEFACK. VU which a page concludes is repeated at the top of tlie following page beloir the figures denoting the page. Mr Ross, in his introductory address, says, '* I •' mean to quote authorities for whatever I advance *' or reason from : I am sensible it becomes my knovv- ** ledge, my experience, and situation in life ; none ** of which entitle me to speak upon my own credit." Feeling these expressions to be peculiarly applicable to myself, I have endeavoured to avoid advancing statements on my own judgment. How far 1 have been successful in making the proper application of the authorities cited, it is for others to decide. The clauses quoted in the notes are inserted for the purposes of reference, and are not always to be relied on as forming parts of continuous deeds or forms. I have frequently given examples of particular clauses of an important nature which have been under judicial discussion, being strongly impressed with the view, that terms and clauses which have received the sanction of the Court form the surest foundation of practice. On the other hand, such as have been found defective serve as a lesson of caution to the practi- tioner. In citing decided cases, those contained in Morri- son*s Dictionary are marked •' M." and those in BrowrCs Supplement, " B. S." followed by the page. The decisions reported by Messrs Shaw, Dunlop, Bell and Murray are referred to as in Vol. II. of Mr Shaw*s valuable Digest. Edinburgh, Uth November 1838. CONTENTS. CHAPTER I. Page. OF THE FORM AND AUTHENTICATION OF WRITS, 1 Title I. Writs in g-eneral, 1 II. Private writs, 2 III. Official writs, 30 IV. Vitiations in writs, 33 CHAPTER II. DEEDS OF CONSTITUTION, 38 Title I. History of the original charter, 38 II. Clauses of the charter, 58 III. Instrument of sasine, 101 IV. Registration of the sasine, 119 V. Grants of servitudes, 136 • CHAPTER III. ABSOLUTE CONVEYANCES INTER VIVOS, 142 Title I. History of the disposition of sale, 142 II. Missives of sale, 152 III. Minuteof sale, 152 IV. Articles of roup, 1 62 V. Of the title of the seller, 172 VI. Searches of incumbrances, 1 80 VII. Disposition of sale, 187 VIII. Sasine on the disposition, 212 •• IX. Charter of confirmation, 212 X, Charter of resignation, 225 XI. Union of resignation and confirmation, 234 XII. Of consolidation 235 X CONTENTS. Page. Title XIII. Modes of entry, 239 XIV. Entry with the Crown, 249 CHAPTER IV. REDEEMABLE CONVEYANCES OR RIGHTS, 257 Title I. The wadset, 257 II. The annualrent right, 262 III. The heritable bond, 266 IV. The bond and disposition in security, 286 V. Bond of redeemable annuity, 293 VI, Securities for future debts, 294 VII. Burdens by reservation, 296 VIII. Sasine on conveyances in security, 296 IX. Adjudications, 297 X. Transmission of redeemable rights, 306 XI. Disposition and assignation of heritable bond, 307 XII. Disposition and assignation of heritable bond and sasine, 308 XIII. Disposition and assignation of an adjudication, 309 XIV. Entry with the superior, 310 XV. Rules of preference, 312 CHAPTER V. CONVEYANCES MORTIS CAUSA, OR DEEDS OF SUCCES- SION, 314 Title I. General disposition and settlement, 314 II. Special settlement, 316 III. Deed of entail, 334 IV. Marriage-contract or settlement, 389 V. Trust-settlement, 428 CHAPTER VI. ENTRY OF HEIRS, 441 Title I. Forms of entry, 441 II. Special service, 445 III. General service, 447 IV. Forms in the special service, 455 V. Forms in the general service, 470 CONTENTS. XI Page. Title VI. Service of heirs of tailzie, 473 VII. Service cum hene/icio inventarii, 475 VIII. Crown precept, 475 IX. Vr^cGT^i o^ clave constat, 483 X. Trust-adjudication, 489 CHAPTER VII. EXTINCTION OF FEUDAL RIGHTS, 492 Title I. Resignation «(/ »'^»iane«fm?n, 492 II. Discharge and renunciation, 496 III. Redemption, 501 IV. Amission, ." 502 V. Prescription and confusio, 508 CHAPTER VIII. BURGAGE RIGHTS, 509 Title I. Absolute conveyances, 509 II. Redeemable rights, 514 III. Entry of heirs, 514 ADDENDA, 517 TREATISE ON FEUDAL CONVEYANCING. CHAPTER I. OF THE FORM AND AUTIIENTrCATION OF WRFFS. TITLE I. WRITS IN GENERAL. Sect. 1. Definition — A writ may be defined, an instru- ment by which the property of an individual is conveyed or affected, or his person subjected to the operation of the law. Writs by which obligations arc undertaken, or corporeal sub- jects affected, are usually styled Deeds. A large class of deeds, again, receive from their purpose the name of Con- veyances, and hence the branch of practice more immediately connected with them is styled Conveyancing. 2. Division of writs Writs, as regards their form and mode of authentication, may be divided into Private, Official and Purlic. Private writs are granted or entered into by individuals in their private concerns, and are termed Unilateral, Bilateral or Multilateral, according as they are executed by one, two, or several parties. Official writs are the instruments of notaries, and the executions of messengers-at- arms and other officers of the law, and may be also called sup- plemental. They are testificatcs of the due performance of legal ceremonies, and have reference to other writs. Public writs consist of the interlocutors of judges, extracts from re- gisters, suunuonses, diligences, and the like. The several descriptions of writs are regulated by dillerent rules and forms A Form and { 3^ ESSENTIALS. \\ir,.^' of authentication ; and private and official writs, to which alone our subject refers, will therefore, with respect to these, be separately considered. TITLE II. PRIVATE WRITS. 3. Essentials The essential parts of a writ or deed, (as respects its form,) relate to the subject-matter, the parties, the shape, and the mode of attestation. Art. 1 . Subject-matter. — A writ must contain the terms proper for expressing the intention of the parties, and the words of style suited to the nature of the agreement or conveyance of which it forms the evidence. The substantial parts thus differ according to the subject-matter of the writ. 2. Parties (1.) The parties to a deed must be de- scribed in it by their names and proper additions or designa- tions, so as to be distinguished from all others (a). Where the identity is not clear, an error in, or the omission of the Christian name, will be fatal to the deed {b) ; and the prac- titioner ought to assume that blunders of this description will be strictly dealt with. (2.) A practice at one time prevailed of leaving: a blank for the name of the creditor in moveable bonds, which thus passed from hand to hand like our modern bank-notes. The principal danger arising from the use of these imperfect writs, was probably to the system of which they form- ed a part ; and the more immediate cause of their suppression appears to have been the endless litigation occasioned by the easy transmission of the ric/ht, and the attempts of the credi- tors of the several holders to attach the subject. Bonds sub- scribed and delivered blank in the name of the creditor are now void by statute (c). From the terms of the enactment, it has been inferred that the insertion of the name before de- livery, even by a hand different from that of the writer of the deed, excludes the nullity (d) ; but it may, perhaps, be doubted if that doctrine would now be supported. (3.) The enact- ment has been extended to deeds of entail containing a num- ber of substitutions, but so as to affect only that particular nomination to which the blank applies. It is at least clear that the nulUty is not pleadable against disponees primarily Form and J 3^ ESSENTIALS. J ^/'.y^f " Authentication. \ / »iit>. favoured, on account of blanks in the nomination of post- poned parties, or parties for whom separate interests are in- tended (e). 3. Shape. — (1.) Until the end of the 17th century deeds were written on rolls of paper pasted together lengthways, and in practice the party subscribed at the joinings, although this was not a statutory requisite (^), as well as at the end. The modern shape of our writs was introduced by a sta- tute (//), which, although not imperative, has been closely followed in practice. It allows all contracts, dispositions, decrees and other securities to be made up and written by way of book, in leaves of paper either in folio or quarto, pro- vided that the testing clause make mention of the number of pages, every page being marked by the number first, second, &c., and signed as the margins were before, and the last page signed by the witnesses. These provisions are thus condi- tions of the permission conferred by the enactment. Their purpose was obviously to prevent the interpolation of addi- tional leaves in the middle of a completed writ ; and as this is considered impracticable when the deed is written on a single sheet of paper, although consisting of more than two pages, the subscription by the party of the last page, whether the second, third, or fourth of the sheet, has been held sufficient (i). The pages may be numbered by arithmetical figures, but words are usually employed (/<). (2.) Deeds having the sub- stantial parts in writing, and the formal clauses printed, have been sustained. 4. Mode of attestation. — The mode of attesting or authenticating deeds consists in the solemnities introduced by statute. These demand particular notice. They are classed amongst the essentials of writs, as being necessary to the com- pletion of a formal deed, although the effect of their omission may be excluded by homologation. A general view of the solemnities originally in use, and since gradually introduced by statute, may be taken, before proceeding to consider the present state of the practice in the attestation of deeds. (a) Ersk. 3. 2. 6. (h) Reid, 7th March 183o, F. C. and 13 S. 619. See Keillor, 16th Juno 1826, 4 S. 724. A 2 Form and Authentication 4 ] 3. ESSENTIALS. {^^^ (c) Act 1696, c. 25. Our Soveraign Lord considering that tlio subscribing of bonds assignations and dispositions and other deeds blank in the name of the person in wliose favors they are granted as also that the intrusting of persons without any declai-ation or back-bond of Trust in writing from the per- sons intrusted are occasions of fraud as also of many pleas and contentions Doth therefore with advice and consent of the Estates of Parliament Statute and Ordain that for hereafter no bonds assignations dispositions or other deeds be subscribed blank in the person or person's name in whose favors they are conceived and that the foresaid person or persons be either insert before or at the subscribing or at least in presence of the same witnesses who were witnesses to the subscribing before the delivery certifi/ing that all writs otherwayes sub- scribed and delivered blank as said is shall be declared null And farder that no action of dcelai-ator of trust shall be sustained as to any deed of trust made for hereafter except upon a declaration or back-bond of trust lawfully subscribed by the person alleged to be the trustee and against whom or his heirs or assig- neys the declarator shall be intented or unless the same be referred to the oath of party simpliciter Declaring that this act shall not extend to the indorsation of bills of exchange or the notes of any trading company. (d) Ersk. 3. 2. 6. (e) Kennedy, 13th July 1722, M. 1681 ; Abernethy, 17th Jan. 1835, F. C. and S. 13. 263. (/) Creditors of Spot, M. 16,868; Stirling, 1st Dec. 1711, B. S. 4. 856. See Stair, 4. 42. 3; Bell on Testing of Deeds, 67. (if) Ersk. 3. 2. 14. (A) 1696, c. 15. Our Soveraign Lord understanding the great trouble and inconveniency the Liedges are put to in finding out of clauses and passages in long contracts decreets dispositions extracts transumpts and other securities consisting of many sheets battered together which must be either folded or rolled together Doth for remeid thereof with advice and consent of the Estates of Parliament statute and ordain that it shall be free hereafter for any person who hath any contract decreet disposition or other security above mentioned to write to choose whether he will have the same written in sheets battered together as formerly or to have them written by way of book in leafs of paper either in folio or quarto providing that if they be written bookways, every page be marked by the number first second &c. and signed as the margines were before and that the end of the last page make mention how may pages are therein contained in which page only witnesses are to sign in writs and securities where witnesses are required by law and which writs and securities being written bookways marked and signed as said is his Majesty with con- sent foresaid, declares to be als valid and formal as if they were written on several sheets battered together and signed on the margin according to the present custom. (i) ■Williamson, 21st Dec. 1742, M. 16,933; Smith, 4th July 1816, F. C. ; Gillespie, 22d Dec. 1831, F. C. and S. 10. 174. (k) Cassilis' Trustees, 2d June 1831, S. 9. 663. 4. Sealing, the earliest mode of authentication. (l.) The forms employed in authenticcating writs were gradually introduced and perfected. Prior to the act of Form an. 1 ? 4.SKU>ING, ^Private Authentication. ) . ^. > - . ^ Writs. 1540, the subscription of the party was not a solemnity. In Scotland, as in the other feudal nations which arose after the fall of the Em])irc, deeds both public and private were ori- ginally authenticated by means of a sif/7i or seal — words then of the same import. They denoted the figure of the cross, the sign or seal of our redemption, which, in the early ages of Christianity, was adopted as the type of the solemn ap})eal made by the granter of a deed to the Author of our salvation, in evidence of his resolution to abide by the writ to which he had affixed a mark so sacred. Antiquaries inform us, that signing or sealing was acquired by the Franks and other feu- dal nations from the vanquished Romans, and was borrowed by our ancestors from the Anglo-Saxons. (2.) The original sign common to all gave place to the representation of a coat of arms, the initial letters of the name and surname, or others of a more complex description, invented by the fancy of in- dividuals. These were engraved on hard substances, and to the operation of impressing them upon wax, the distinctive term sealiiuj came to be applied. This improved mode of authentication, the second step in the advance from the ver- bal testimony of witnesses, although but a rude safeguard against fraud, was perhaps sufl&cient amongst a barbarous people whose transactions were few and notorious, and at a time when property was in the hands of a small number of feudal barons. (3.) At this early period, the names of such persons of note as were present at the authentication of the deed were usually inserted at the conclusion, but as witnesses, in the modern sense of the terra, their presence does not ap- pear to have been essential, as there was no form in use for recording the f;ict. It would appear, from the long list of names often added at the end of deeds, that the presence and mention of witnesses was more for parade than use. Ruddiman ; Ross ; Erskine. 5. Subscription of the party — Act 1540, c. 117 — The enactment of the first statute {a), passed for regulating the attestation of writs, is said to have been occasioned by the prevalence of the crime of forgery by the iii^e of the seals Form and ) t- \ Private Authentication. J 5. SUBSCRIPTION OF THE PARTY. \ ,y.,,,. of the pretended grantors after their death, a reason which is not inconsistent with the preamhle (b). (1.) By this statute the subscription of the party to all writings under a seal was introduced as a solemnity, and according to the strict letter of the act, the subscriptions of at least two witnesses were to be added. The words are, " the subscription of him that awe " the sarain, and witnesse (c)." It is more probable that the difficulty of procuring witnesses who could write their names was the cause of the uncertain practice which followed, than any doubt in regard to the true meaning of the words. It is certain, however, that the subscription of the witnesses fell into disuse. Occasionally, they subscribed without being mentioned in the deed, but more generally their names and designations were inserted, and their subscriptions dispensed with. (2.) At this period, it was a common practice for per- sons possessing land estates to subscribe the name or title of their lands, in place of their Christian name and surname. By an act respecting the office of Lord Lyon, and the bearing of arms, it is however declared, that " it is only " allowed for noblemen and bishops to subscribe by their titles ; " and that all others shall subscribe their christened names, " or the initial letter thereof, with their surnames, and may, " if they please, adject the designation of their lands, prefixing " the word ' of to said designations (^/)." (a) 1540, c. 117. It is statute and ordanit that becaus mennis seles may of adventure be tint quhairthrow gret hurt may be generet to them that awe the samin and that mennis seles may be fenzied or putt to writingis efter their deceis in hurt and prejudice of our Soverane Lord's liegis that therefor na faith be given in tymc cuming to ony obligation band or uther writting under ane sele without aubscriptioun of him that awe the samin and witnesse ; or ellis gif the party cannot write, with the subscriptioun of ane notar thereto. (6) Ersk. .3. 2. 7. (c) This word appears, from Mr Thomson's edition, to be used in the plural. Compare it with the same word in 1579, c. 80. (d) 1672, c. 21. 6. Subscription by notaries — Act 1579, c. 80. (a) — The uncertain practice which followed the passing of the statute of 1540 prevailed for a long period. It was not remedied by the act of 1579, which, if its terms are to be re- 7 ,^°'""\'""! [ G. ACT 1571). r':?\f' Authentication. S t *^ "'»• garded in preference to the observations of Sir George Mac- kenzie (/>), was intended to regulate not the attestation of deeds made by parties who could write, but to prescribe rules for the conduct of notaries acting for those who were igno- rant or incapable of writing (c). The statute provided, that all writs importing heritable title, or bonds or obligations of great importance, should be subscribed and sealed by the parties, " if they can subscribe," words which do not go be- yond the enactment of 1540. Otherwise they were to be subscribed by two notaries, in presence of four witnesses properly designated. But it was not required that witnesses should subscribe along with the party. The observation by Mackenzie, that two witnesses were necessary to the sub- scription of the party, is not warranted by the terms of the statute ; and unless it were held that the enactment was meant to regulate the form of notarial attestation only, it would fol- low that four, and not merely two witnesses, were required to the subscription of the party himself, a conclusion which has not been drawn by any of our systematic writers. The prac- tice which followed the enactment was accordingly not mate- rially different from that which preceded. Witnesses did not subscribe, and where their names and designations were omit- ted, the Court allowed these to be supplied by a condescen- dence. (a) 1579, c. 80. It is statute and ordained be ouv Sovereign Lord with ad- vise of his three Estaites in Parliament that all contracts obligationes rever- siones assignationos and discharges of reve'rsioncs or eikes thereto and gene- rally all writs importing heritable title or uthcris bands and obligationes of great importance to be maid in time camming sail be subscrived and seilled be the principal parties gif they can subscrive otherwise be twa famous notars befoir four famous witnesse denominat be their special dwelling-places or sum uther evident tokens that the witnesse may be knawen being present at the time Otherwise the saidis writs to mak na faith. (b) Observ. on the Statutes, p. 193. (c) Ross, 1. 128. 7. Designation of the writer. — Act 1593, c. 179 — At the period when the next statute on the subject of the attes- tation of writs bears date, the country docs not yet appear to have reached that state of advancement in which subscri- bing witnesses could readily be procured, although a dis- 8 ^-"> I 7. ACT 1593. j^;;:;^f Authentication. S ^ ^^'"*" pensation with the use of seals, given some years before in relation to deeds having; a clause of registration, proves that writing had come to be chiefly regarded in the attestation of deeds, (a) By the statute of 1593 (b), an additional solemnity was added, in the insertion, at the end of the deed, of the name and designation of the person by whom it is engrossed. This provision, had it been strictly enforced, was well cal- culated to be a safeguard against forgery, and to preserve additional evidence of the act of the granter ; but the Court admitted extrinsic evidence, and sanctioned vague descriptions of the writer. (a) 1584, c. 4. The Kingis INIajcstic with advise of the three Estaites of this present Parliament expones and declares that the act anent the sealing of writtes of importance is uocht to be understood of sik writtes contractes or obligationes as ar be the parties agreed upon to be registrat in the bulks of our Soveraine Lordis Councel or uther ordinar Judges seeing the parties consents to regis- trat the same Quhilk is ane greater solemne act nor the sealing thereof And that the non-sealing of the same sal be no exception against the validitie of the saidis writtes being subscribed be the parties and agreed on to be registrat as said is Quhilkis his Majestic and Estaites foresaidis declaris to neede na sealles Neither that the said act anent the saidis writtes to be subscribed be twa notars sal be extended to instrumentis of sesing quhairunto ane faithful notar with ane reasonable number of honest and famous witnesses is sufficient And this declaration to be observed as ane law in all time coming (6) 1393, c. 179. Our Soveraine Lord and Estaites of this present Parlia- ment understanding perfitely that falsettes increases daily within this realme and specially be the writing of the bodies of the contractis cliarteris obliga- tionis reversionis assignationis and all utheris writtis and evidentis be the hand- write of sik personis as ar not commonly knawin and ar not common notaris nor bruikis na common office as writers within this realme And gif the writer were knawin the samine wald give great light to the tryal of the truth of the falset of the said writ and evident Therefore his Hienes with advice of the saidis Estaitis in Parliament decernis and declaris that all original chartouris con- tractis obligationis reversionis assignationis and all utheris writtes and evi- dentis to be maid hereafter sail mak special mention in the hinder end thereof before the inserting of the witnesse therein of the name surname and particular remaining-place diocese and uther denomination of the writer of the body of the foresaid original writtes and evidentcs othcrwais the same to mak na faith in judgment nor outwith in time coming And to begin upon the first day of No- vember nixt to cum. 8. Act 1681, c. 5. (a) The Legislature did not alter the mode of authentication thus introduced for nearly a cen- tury. In 1681 was enacted that famous statute which has l^'>''"""-' I 8. act1(J81. 5^[^'.f placed our modern system on a footing of great security. By this time the country was ripe for the important addition of the subscriptions of the witnesses, and it is probable that the loose princii)les of interpretation then in vogue materially hastened the enactment. It proceeds upon the cause, that witnesses inserted in writs, and not subscribing, may easily disown their being witnesses, and declares that only subscri- bing witnesses shall be probative ; that all writs wherein the writer and witnesses are not designed shall be absolutely null ; that no witness shall subscribe as such to the subscription of the party, unless he know the party, and saw him subscribe, or saw or heard him give warrant to a notary or notaries to subscribe for him, and in evidence thereof touch the notary's pen ; or that the party shall acknowledge his subscription to the witness. Witnesses, for disobedience of the statute, are subjected to punishment as accessory to forgery. (a) 1C81, c, 5. Oi'R Sovereign Lord, considering that by the custom intro- duced when writing was not so ordinary, witnesses insert in writs, although not subscribing, are probative witnesses, and by tlicir forgetfuhiess may easily disown their being witnesses. For remeid whereof, his IMajestie with advice and con- sent of the Estates of Parliament, doth enact and declare, that only subscri- bing witnesses in writs to be subscribed by any partie hereafter shall be proba- tive, and not the witnesses insert not subscribing : And that all such writs to be subscribed hereafter, wherein the writer and witnesses are not designed, shall be null, and are not suppliable by condescending upon the writer, or the designation of the writer and witnesses. And it is further statute and decla- red, that no witness shall subscribe as witness to any party's subscription, unless he then know that party and saw him subscribe, or saw or heard him give warrand to a nottar or nottars to subscribe for him, and in evidence thereof touch the nottar's pen, or that the partie did at the time of the witnesses subscribing acknowledge his subscription : otherwise the saids witnesses shall be repute and punished as accessory to forgerie. And seeing writing is now so ordinary, his IMajesty with consent foresaid doth enact and declare that no witnesses but subscribing witnesses shall be probative in instruments of seising, instruments of resignation ad remanenfiam, instruments of intimation of assignations transla- tions or retrocessions to bands contracts or other writs which shall happen to be subscribed in any time hereafter : And that none but subscribing witnesses shall be probative in executions of messengers, of inhibitions, of interdictions, hom- ings or aiTCstmcnts : and that no execution whatsoever to be given hereafter shall be sufficient to infer interruption of prescription in real rights, unless the same be done before witnesses present at the doing thereof subscribing : And that in all the said cases, the witnesses be designed in the bo ^q ^^^^^ ^^^ SUBSCRIPTION. \ K^'-f'' Autheutication. ) ( Writs. the initial letters of the party's name, that this was according to his ordinary mode of subscrihing (/). 4. Bi/ bVmd persojis (1.) It was for a long period a controverted point if blind persons could be regarded as capable of adhibiting their subscription to deeds in the sense of the act of 1579. In an early case (m), a deed was challen- ged on the ground that th»%party was incapable of knowing to what he set his name ; but the objection was repelled, on the ratio that a blind person has the same access to be informed which they have who see and cannot read. In later cases the Court took a different view of the question («), but it may now perhaps be held as set at rest by a recent decision (o) of the Court of last resort, in conformity with the case of Coutts. (2.) It is not essential that deeds shall be read over to blind persons prior to their attestation ; and the onus of shewing that the party was not acquainted with the contents of a deed signed by him in a state of blindness, rests on the person challenging the deed(p). It is advisable, however, as a rule of practice, to read over the deed to the party, in presence of the instrumentary witnesses. (a) 1672, c, 21 ; 1540, c. 117. (h) Gordon, 21st June 1765, M. 10,818. (c) Robertson, 20th Dec. 1744, Eleh. voce Writ, No. 18; Falconer, 9th Jan. 1751, M. 16,817 ; Harkness, 14th Sept. 1821, 2 Murray, 558. (^d) Moncreiff, 14th July 1710, M. 15,936. (e) Crosbie, 30th Nov. 1749, M. 16,814. (/) Ersk. 3. 2. 8; Meek, 18th .Tunc 1707, 16,806. (irs, 22d June 1813, F. C. (m) Gouts, 21st June 1081, M. 12,001. (») See Falconer, 9th Jan. 1751, M. 16,817; E. of March, 16th Dec. 1735, 6 B. S. 840; Ross's Trustees, 3d July 1792, M. 16,853. (o) E. of Fife, 30th Nov. 1819, as reversed I7Hi July 1823, 1 Shaw's App. 298. (;,) E. of Fife, above. 13 Form and ) 1 1 . SUHSCRIPTION BY NOTARIES. i ^v T" Authentication. ) i Writs. 11. Subscription by the intervention of notarie.s. The statutes of 1579 and 1G81, in so far as they relate to subscription by notaries, make provision for the case of per- sons who cannot write. Amongst these may be fairly classed such as can only write the initial letters of their name and surname. Subscription by the intervention of notaries is that of mandataries of the principal party ; and the ordinary rules of attestation receive effect, combined with those which are necessary to ensure the due communication of authority to the notaries. 1. The notaries ouf/ht to know the party — Notaries are, by an Act of Sederunt dated 2 1st July 1689, prohibited and discharged from subscribing for persons who cannot write, unless their identity consist with the knowledge of the nota- ries, or be attested by the instrumentary witnesses, or other credible persons whose names must be mentioned in thedoquet. 2. Beading of the deed The deed ought, in the first instance, to be read over to the party in presence of the wit- nesses, although this ceremony is not required c?e5oZem««Ya^e (a). It is a convenient mode of preserving evidence that it is the deed of the party. 3. Warrant to the notaries — The party must, in the next place, evidence the giving warrant to each of the notaries, by touching his pen. It is not, however, essential that the notary shall describe this proceeding in his doquet (Z»), but only that he state that warrant was given (e). ^Vhere the notaries adhibit separate doquets, the rule applies to each, and that although the deed itself may bear that the party gave warrant to them to subscribe for him (d). Where a marginal note occurs on the deed, the doquet must bear that the war- rant extended to this addition (e). 4. Form of subscription (I.) Warrant having been duly given, a doquet is subjoined by the notaries in the hand- writing of one of them, in which they are described as notaries- public, and co-notaries in the premises. Each afterwards subscribes on all the pages of the deed his motto, name and surname, adding the initial letters N. P., and their subscrip- tions must be adhibited unico conte.vtu with those of the wit- nesses. (See § 10). The deed itself is closed with a testing 14 Form and J ] 1 . SUBSCRIPTION BY NOTARIES. l^^'ruT Authentication. ) I Writs. clause in the ordinary form, containing, however, the names and designations of four in place of only two instrumentary witnesses. The statement in the doquet, of the party's de- claration of his inability to write, is probative only of the fact of such declaration having been made ; and as it cannot establish the inability, it appears to be no essential part of the doquet. The safe course, however, for the conveyancer is to be guided by the practice, and to insert, not merely the declaration of the party, but the cause of the inability, whe- ther illness or ignorance. (2.) It has been questioned, if a deed duly subscribed by notaries at the desire of the granter, may be set aside on evidence of his ability to write his name. It may be doubted if the party may himself except on that ground to a deed so executed (fj) ; and it seems to be held that third parties cannot effectually plead the statutes of 1540 and 1579, which declare that all writs shall be subscribed by the parties themselves, if they can subscribe, without at least challenging the deed as false (h). 5. Parisli ministers Parish ministers may officiate as notaries in their own parishes in the authentication of tes- taments, but not for the inhabitants of other parishes, unless in the absence from the parish of its own minister (J). 6. Disqualijication (1.) It does not appear that rela- tionship, however close, disqualifies a notary-public, but he cannot act in matters where he has a personal interest (A). The same person cannot both subscribe a deed as a party, and competently represent another, as notary, in executing it (J) ; nor can a notary act for more than one of the parties to a mutual contract (m), (a) Bell on Testing of Deeds, p. 199 and 228 ; Yorkstoun, 2d Dec. 1794, M. 16,8.5G. (t) Dallas, 1.3th Jan. 1704, M. 16,839 and 5677 ; Maver, 7th July 1710, M. 16,841. (c) AVilliamson, 23d Feb. 1688, M. 16,838; Mackenzie, Feb. 1688, M. 16,838. {d) Birrel, 17th June 1745, M. 16,846, and Elch. voce "Writ, 19. (e) Elliots, 9th Dec. 1695, M. 16,838. (/) We A. B. and C. D., notaries-public and co-notaries in the premises, at the desire of the before named and designed E. F., who declares he cannot write by reason of, (state the cause,) and he having, in token of his warrant and autho- rity to us, touched each of our pens respectively, in presence of the witnesses If) Form and J 1 1 . SUHSCUIPTION BY NOTARIKS. j ^['^^'•' before named and designed, do subscribe for liim, before and in iiresenee of the said witnesses. (ff) See Littlejohn, 8th Dec. 1608, M. 16,828. (A) Clerk, 3d Jan. 1G83, M. 16,837; Reid, 19th Dec. 1837, T>. 16. 273. See Reid, 7th July 1835, F. C. and S. 13. 1063. (i) 1384, c. 133. Hepburn, 3Ist Jan. 1606, M. 16,827. (A) Leith Bank, 22d Jan. 1836, D. 14. 332. Sec Cheap, I4th June 1667, B. S. 1. 544. (Z) Gormock, April 1583, M. 16,874. (m) Craig, 27th Juno 1610, M. 16,829. 12. Must every page be subscribed? — The provision of the act of 1695, that every page shall be signed as the margins were when deeds were engrossed on sheets battered together, has not been regarded by the Court as imperative. When a deed consists of two or more pages written on a single sheet of paper, subscription on the last page has been held sufficient (a). (See § 3, Art. 3.) The letter, although per- haps not the spirit, of the enactment, has thus been disre- garded. (a) Williamson, 12th Dec. 1742, M. 16,933; Smith, 4th July 1816, F. C. 13. Instrumentary WITNESSES 1. JVho may he icit- nesses — The rules regarding the competency of instrumen- tary witnesses in the attestation of deeds, differ materially from those which regulate the admissibility of witnesses to give evidence in courts of justice. Generally it may be observed, that any nuile of the age of fourteen or upwards becomes a habile witness by the request of the granter of a unilateral deed, or by the mutual consent of the parties to a contract or other bilateral or multilateral deed (a). A per- son even infamous in the eye of law has, in this latter situa- tion, been found unexceptionable (b) ; and it is customary for parties to call in their nearest relations to witness their sub- scriptions, against whom no objection is understood to lie, if they do not benefit by the deed. A large interest on the part of a witness in the subject-matter renders the deed invalid, but not a mere legacy of an inconsiderable amount (c). In a practical view, interest, however trilling, ought to induce the rejection of a person as a witness. 2. Thet/ jnust know the imrtrj — The knowledge by the k; Form and J 13. INSTRUMENTARY WITNESSES. l^'^.f" Authentication. ) i Writs. instrumentary witnesses of the identity of tlie party is a sta- tutory requisite, and credible information at least is required on their part (d). 3. Thei/ ought to see the part?/ subscribe. — It may be laid down as a rule of practice, that the subscription of the party must be adhibited in presence of the instrumentary witnesses, although it is sufficient that they hear him acknow- ledge it to be his. The witnesses to the subscription of the party are, according to invariable practice, two in number. They must have a warrant for their own subscriptions as such, beyond mere private knowledge of the handwriting of the party, which is necessarily excluded by the terms of the ■ act of 1681. Although the statute provides only for the punishment of persons who sign as witnesses contravening its provisions, and does not declare the nullity of the deed, it is manifest that those only who have seen the party subscribe, or heard his acknowledgment, are witnesses in the proper sense of the term. The nullity, therefore, which is directed against deeds in which the witnesses are not designed, comes thus indirectly into operation ; and the fact of witnessing the subscription, or the acknowledgment of the party, is regarded as a solemnity not to be supplied even by an admission of the genuineness of that subscription (e). 4. Must sign unico contextu with the party. — (1 .) Wit- nesses subscribe on the last page only, and they ought to subscribe at the same time with the party (/). The deed being incomplete until their names are adhibited, a consi- derable interval between the subscription of the party and their subscribing, may leave room for the averment that he had withdrawn his consent before the deed was perfected ; but it is not essential that the subscriptions of the witnesses should be added in his presence, or that the deed should not have been lost sight of by them in the interval {ff). Nor is it a valid objection, that the witnesses subscribe at dif- ferent times, the request of the party made to each, al- though on separate occasions, connecting the one operation with the other (A). Any deviation from the ordinary prac- tice, is, however, to be carefully avoided, as subjecting the deed to suspicion ; and it is not to be doubted that a delay to 17 Fornian.l J y^ INSTKUMENTARY WITNESSES. \^'!''' Aiilhoiitication ) ( Writs. complete the deed until another day had commenced, would be fatal. (2.) Each of the witnesses, in subscribinir, adds the word " witness " to his name, and they are thus connected with the description in the testing clause. This addition, although not a statutory requisite, ought to be carefully at- tended to in practice. It marks, in the handwriting of the witness, the character in which he assists in the authentication of the deed ; and without this holograph declaration of his character, a question might arise, if a person, although de- signed in the testing clause as a witness, would be subject to the penalties imposed by the statutes (/). (3.) A witness cannot authorise another person to subscribe for him (k) ; and it has been found that a witness to the execution of a summons, must be capable of subscribing at length, and not merely by initials (I). There seems no reason to doubt that this rule applies to an instrumentary witness in a deed. It would be highly inexpedient to admit any person as such, who cannot fully and formally subscribe his name. 5. Witnesses to subscription by notaries Warrant having been duly given by the party to notaries to subscribe for him, and the doquet written by one of them, the wit- nesses, who are four in number (///), must subscribe at the same time and ])lace with the notaries ; for the reason that one and all of the witnesses attest not merely the giving of authority to each of the notaries, but likewise his actual sub- scription under that authority (ji). This rule will pot be dis- regarded, even on the admission of the party, that he gave warrant to the notaries (o). The witnesses must hear the party authorise the notaries, or sec him do so by touching the pen of each (/;). Where the person signing by the inter- vention of notaries, is one of several parties to a deed, and the deed is executed by all of them at the same time, it is sufficient that the witnesses subscribe once, as attesting the execution of the deed by those who can, and by the person who cannot write ( 13. INSTRUMENTARY WITNESSES. 5 wlVi'!'' Authentication. S t Writs. 7. Evidence in reductions — When a probative writ is cliallenged as false, the Court are very guarded in receiving evidence to overcome the presumption in its favour ; but the testimony of the instrumentary witnesses is admissible, although not conclusive {s). It is thus a relevant inquiry if the wit- nesses, or one of them, did not see the party subscribe, or hear him acknowledge his subscription ; but a non memini — a want of recollection — on the part of the witnesses, or even the direct testimony of a single witness, will not affect the deed(^). Indeed, the leaning in modern practice seems rather to be against the credibility of the instrumentary witnesses when their testimony contradicts their solemn written attestation, ' unless it be supported by other and unexceptionable evi- dence (v). (a) Ersk. 4. 2. 27; Davidson, 12th Dec. 1738, M. 16,899. (h) Baillie, 1st Feb. 1710, M. 16,891. (c) Ersk. as above. Robertson, 21st Nov. 1627, M. 16,879; Graham, March 1683, M. 16,887 ; Ingram, 22d Jan. 1801, M. App, voce Writ, No. 2. (d) 1681, c. 5, above, p. 9; Campbell, 29th Nov. 1698, M. 16,887; Walker, 8th June 1716, M. 16,896. (e) Duff, 22d Dec. 1825, F. C. ; S. 4. 333 ; affirmed, 22dMay 182G, W. S. 2. 166. The authority of Smith, 4th July 1816, F. C. disregarded. (/) Hume, June 1730, M. 16,898. (£f) Frank, 3d March 1793, M. 16,824. (h) Robertson, 1st Dec. 1823, S. 2. 544. (i) See Bell on Execution of Deeds, 288; Gibson, 16th June 1809, F. C. ; Doig, 9th Jan. 1741, M. 16,900; Wemyss, 5th Jun« 1821, S. 1. 47; affirmed, 1 W. S. 140. (A) Setton, 24th Feb. 1816, 1 Mur. 9. (I) Meek, 18th June 1707, M. 16,806. (w) 1579, c. 80, above, p. 7. (n) Anderson, 24th Dec. 1709, M. 6843 and 16,840; White, 27th Dec. 1711, M. 16,841. (o) Rollands, 1st July 1767, M. 16,851. (/)) 1681, c. 5; Farmers, 25th June 1760, M. 16,849. (5) Hardie, 6th Dec. 1810, F. C. (r) Lady Ormiston, Jan. 1708, M. 16,890. (s) Balfour, Bell's Lectures, p. 246; Frank, 9th July 1795, M. 16,824; Swany, 12th Dec. 1807, M. App. Writ, 7 ; Condie, 26th June 1823, F. C. and S. 2. 432. (0 Sim, 23d Nov. 1708, M. 16,891 ; Young, 2d Aug. 1770, M. 16,905; Sibbald, 18th Jan. 1776, M. 16,906; Cleland, 6th July 1837, D. 15. 1246. (tt) Frank, 3d March 1793, M. 16,824; Richardson, 28th Feb. 1811, F. C. Condie, as above. I'J Form ami > 14. TESTING CLAUSE. 5 w 'f ° Authentication. S i Writs. 14. Testing clause («) — 1. Time of insertion — This part of the deed contahis the record of the res gestcc and other im- portant particulars connected with its execution. Its inser- tion is in the ordinary case an ex post facto operation, and depends for its accuracy wholly upon the conveyancer. This loose practice is caused hy the exigencies of husiness, many important deeds being engrossed in Edinburgh, and sent for execution to the country, whence they are returned with a note of the particulars of the date, and names and designations of the witnesses, and from this note the testing clause is framed and filled up by the writer of the deed. Necessity is plainly the only apology for the custom ; and when a deed is executed at the place where it has been engrossed, the clause ought to be filled up before subscription. A testing clause, inserted after an interval, can have no pretensions to the character of a probative writing, and ought therefore to be strictly confined to those particulars of which it is necessarily the record. When so limited, it may competently be filled up, or even corrected, after a long period, if prior to the production of the deed in evidence, or for the purpose of being recorded. In a recent case, the operation had been performed at the distance of thirty-two years (V). It is not a valid objection that the clause so filled up is crowded, or even that it extends heloii\ if not under ^ the subscriptions (c). The laxity of practice indicated by the occurrence of such cases is care- fully to be avoided. Their decision plainly depends upon circumstances ; and the conveyancer ought by no means to calculate on similar views being entertained, even in similar circumstances. 2. Number of jxif/cs The testing clause records, in the first place, the number of pages of which the deed con- sists, in obedience to the provisions of the act of 169G (^), which permits the making up of deeds by way of book. But the Court have dispensed with this form in the case of deeds written on a single sheet of paper, which, as regards the sub- scription of the party, and the provision of the statute, are considered to be one continued piece of writing (e). 3. Mention of ilie xcriter. — In the next place, and before the designations of the witnesses, is inserted the de- B 2 20 Form and > 14. TESTING CLAUSE. j Writs^ Authentication, i t wrus. sio-natlon of the writer of the deed, in terms of the statutes 0^1593 and 1681. (See § 7, 8.) By the latter statute, the Legislature took away the power assumed by the Court, of allowing the name and designation of the writer to be supplied by a condescendence ; but, as the terms of the former statute were not interfered with, and these make mention only of the writer of the body of the deed, there is no existing injunction to insert the writer of the names and designations of the wit- nesses (/). Nor is it necessary that the name and designation of the writer of the body of the deed should be inserted in his own handwriting {g). Where a deed is partly printed and partly written, it has been held a sufficient compliance with the statute, to describe the person who fills up the blanks left for the substantial parts (A). The modern practice, with respect to the mention of the writer, extends to the writer of the testing clause, when it is inserted by a person different from the writer of the body of the deed ; and the safe course for the conveyancer is to be guided by the practice. 4. Designation of the ij)riter. — (I.) The insertion of the writer's name, surname, dwelling-place, and other denomina- tion, beino- a statutoi'y solemnity, it is of importance that these should be fully given, so as to exclude all question as to identity. (See Art. 6.) The sufficiency of the designation must depend upon the circumstances of each individual case. Such vague additions as " notary," and " writer," although they have been sustained in favourable circumstances (z), are to be carefully avoided. More recently, the Court re- fused to sustain a defective designation, although the writer was sufficiently known from the testing clause (Ji). (2.) It is not incongruous that the writer of the deed should be one of the instruraentary witnesses ; and when his designation as a witness is complete, the addition of the words, " and w-riter " hereof," in his own handwriting, after the word witness subjoined to his subscription, has been held sufficient. It is, however, to be observed, that such a practice is in the face of the statute, which provides that the writer shall be men- tioned before the inserting of the witnesses (J). (3.) The in- sertion of the name and designation of the writer being a statutory solemnity, its omission cannot be supplied by the 21 Fornw,,^ J 14. TESTING CLAUSE. l":;}'^ Authentication. \ ( » I't*. party acknowledging his subscription (w). (4.) It i.s a prac- tical rule tliat the writer should have no interest, however slight, in the subject-matter of the deed. b. Date and place of subscribing — (1.) The mention in the testing- clause of the date and place of subscribing is next in order. It is customary and highly useful, but not essential, although Lord Stair expresses a contrary opinion (n). Their omission may, however, throw suspicion upon the writ, and the burden of supporting it upon the user {<>) ; and in the question of deathbed, he is deprived of the presumption aiford- ed by the date being specified in the deed. (2.) The prac- tice of executing deeds on a lawful day has been so invariable, that the question, how far a private writ dated upon a Sun- day is valid in a question between competing parties, does not appear to have occurred. The objection, when urged by the debtor, was in one instance repelled ; and, from favour to testamentary writings, they are sustained, although bearing to have been subscribed on a Sunday ; at least the objection has been disregarded where the plea of deathbed was not stated (j)). 6. Designations of the witnesses — The testing clause proceeds to record the designations of the instrumentary wit- nesses, of which the insertion is a statutory solemnity, and the acknowledgment by the party of his subscription will not meet the objection that it has been neglected (7). (1 .) Designation, in the sense of the act of 1G81, means the distinctive descrip- tion of the individual by Christian name and surname, joined with employment, residence, or some other mark of identity. The surname is of course essential ; and it has been ruled that the Christian name is equally indispensable, although the witness may be otherwise sufficiently distingmshed(r). The employ- ment, residenceor other descriptive mark, cannot be the subject of any precise rule. The addition, " indweller in Edinburgh," has been sustained, and that of " Esquire" rt'jected, although the one is scarcely more distinctive than the other {s). A material error, such as brother-german for brother-in-law, is fatal to the designation ; and the designation, when complete, must precisely apply to the individual witness {t), (2.) It is not essential to add the word " witnesses " to the designations 22 Form and ) 14. TESTING CLAUSE. 5^,;^;.^;^ Aulhentu'ation. ) ( Writs. of the instrumentary witnesses : their character is sufficiently indicated hy the word " witness " suhjoined to each of their subscriptions (i<). (3.) Ambiguous expressions used in con- necting the witnesses with the party's subscription are to be carefully avoided ; although, where the circumstances are not suspicious, they will be favourably interpreted (y). 7. Mention of marcjinal notes — (1.) The solemnities of the attestation of marginal notes or additions are not provided for by the statutes. In practice, additions are authenticated by the sidescription of the party, who writes his name or its ini- tial letter above, and his surname under the addition, so as to embrace it between the two, and thus prevent the introduc- tion of more words. Marginal notes seem, in our older prac- tice, to have been regarded as forming part of the pages on which they occurred, when obviously written and sidescribed at the same time with the body of the writ, and do not appear to have been mentioned in the testing clause {lo). In a case where the appearance of the addition was suspicious, and the instrumentary witnesses could not state that it formed part of the deed when executed, the objection of deathbed proved fatal to the addition {x). At a later period, it seems to have been assumed that the instrumentary witnesses must be mention- ed as witnesses to the sidescription of a marginal addition (?/). In practice, this rule applies both to the writer and the wit- nesses ; and even this precaution is by some regarded as insuf- ficient. The attention of witnesses is not usually called to marginal additions ; and nothing can be more easy than to add and sidescribe words of the greatest importance on the margin of a deed after the attestation, butpno;- to the filling up of the testing clause. There would thus appear to be only one certain method of preventing fraudulent or ex ■post facto additions, the sidescription by the witnesses as well as the party of marginal notes. (2.) A fatal objection to a marginal addition does not necessarily affect the body of the deed {z). 8. Mention of erasures. — The effect of writing words on a part of the paper from which other words have been erased is noticed at § 21. It has been questioned (««) if the testing clause is the proper place for recording an alteration of this description ; and there is much room to doubt the ex- 23 ^°"".^"^) I 14. TESTING CLAUSE. l^':"]; ithcntication. i I >> rits, pcdiency of receiving the mere assertion of the writer of the testing clause as evidence that the alteration or deletion had been made prior to subscription. The mode pointed out by Lord Stair (bb) might perhaps, with much advantage, be adopted in modern practice, of employing a marginal note to express the consent of the party to a deletion or superinduc- tion, or words written on an erased part. 9. Practical conclusions — The general results of the rules and forms which have been noticed seem to be these : (1.) Deeds ought to be written fairly and legibly, the pages being marked at the top with their proper numbers. (2.) When deletions, erasures, or supcrinductions, have, through mistake, become necessary, the safest mode is to notice them in a marginal note. (3.) The name and designation of the loriter of the deed ought to be inserted before its execution ; and where there is only one party, or, if more, when the parties reside in the same place, the writer ought, when practicable, to be present, in order that the testing 'clause may be filled up prior to their subscription. (4.) The in- strumcntari/ witnesses must be males of the age of fourteen or upwards ; and they ought to be of known respectability, and in an ordinary degree acquainted with business. It is their duty to pay close attention to the proceedings, that they may be able to speak to the facts of the party having subscribed every page, as well as any marginal notes, in their presence, in the event of the deed becoming, at a future period, the sub- ject of cliallenge. If notaries intervene, the duty of the wit- nesses farther extends to seeing the party give warrant to subscribe for him, by touching the pen of each of the notaries. The witnesses, in practice, subscribe only the last page of the deed, but the author would venture to recommend that they ought also to attest marginal notes with their subscri})tions. The custom, not uncommon, of the party subscribing before the witnesses have been called in, and afterwards acknow- ledging each subscription to them, ought to be avoided, as w^ell as subscription by the witnesses out of the presence of the party. No undue delay should take place in tilling up the testing clause, when a blank has, from the number of the parties, and their residing at diticrent places, or other cir- 24 Form and 7 i i ,^., \ Privat Authentication. \ l'*' TESTING CLAUSE. \ ^y^-^^ curastances, become necessary or convenient ; and it is of importance that the designation of the witnesses required by statute should be full and distinctive, including profession or employment, and residence. (5.) The place and date of sub- scribing, although not essential, ought to be inserted, in order to exclude suspicion, and furnish, in competition with other deeds, or in a question of deathbed, the best evidence of the time of subscription. (6.) Marginal additions will be noticed by the number of the page, and of the line at which they occur. (7.) The name and distinctive designation of the xcriter of the testing clause ought to be mentioned, when it is inserted by a person not the writer of the deed. (8.) Erasures, or other vitiations in the testing clause, cannot be remedied, and, if in substantial parts, they will be fatal to the deed (ec). (9.) All matter foreign to the usual purposes of the testing clause ought carefully to be excluded. (a) (Testing clause.) In witness whereof I have subscribed these presents, written upon this and the preceding page of stamped paper by A. B., clerk to C. D., writer to the signet, at Edinburgh, the day of eighteen hundred and thirty-eight years, before these witnesses, E. J. and G. H./^both also clerks to the said C. D. (6) Blair, 15th Nov. 1827, F. C. ; S. 6. 51 ; Bank of Scotland, 17th Feb. 1790, M. 16,909. See Brown, 11th March 1809, F. C. (c) Drury, 11th March 1753, M, 16,936. {d) 1696, c. 15 ; above, p. 4. (e) Robertson, January 1742, M. 16,935; Macdonald, 14th Feb. 1778, M. 16,956. (/) Watson, Nov. 1683, M. 16,860; Gray, 21st Jan. 1703, M. 12,602; L. of Edmonston, 10th June 1722, M. 16,862. See Andrews, 2d March 1836, D. 14. 589, (Opinion of Lord Corehousc.) (fj) White, 21st Feb. 1710, M. 16,864. (/() Stirling, 1st Dec. 1711, B. S. 4. 856; Creditors of Spot, 30th Nov. 1711, M. 16,868. (0 M'Micken, 27th June 1706, M. 16,916; Rules, 20th Feb. 1712, M. 16,920. {k) Lockhart, 16th Feb. 1815, F. C. (Z) Dronan, 26th July 1716, M. 16,869 ; Ewing, 20th July 1739, M. 1352 ; B. S. 5. 211. (m) M'Farlane, 22d May 1790, M. 17,037. (n) Ersk. 3. 2. 18; AVcmyss, 5th June 1821, F. C. ; 1 S. 47; affirmed, 1 W. S. 140. See Stair, 4. 42. 19. (n) Crawford, 7th June 1666, M. 16,927. (p) Duncan, March 1684, M. 15,003; Yeats, 6th July 1833, F. C, and S. 11. 913. 2r) rovman.l 1 14. TESTING CLAUSE. J ^'?\="' Autlioiiticatioii. 3 ^ Writs. ( ^ >\ rits. evidence, where the genuineness of the subscription, or the fact of holograph, is denied. 17. Holograph deeds 1. Suhscriptiun and proof. — Holograph deeds form the only class of privileged writings with which the feudal conveyancer has any concern. (I.) It is not an essential solemnity of a holograph writ, that it bear the subscription of the party, if it plainly appear from intrin- sic evidence, or that of relative formal documents, that it is a completed writing («) ; but the subscription of the name of the party, or at least its insertion in some part of the writing, would probably be considered indispensable (V). Where the writ is not connected with other relative documents, subscrip- tion is necessary to shew that the grantor put it out " of his hands as a finished document by which he intended to be bound. (2.) It is not essential that the whole body of the wTit, but only the substantial parts, such, for example, as the sum and the name of the debtor in a bond, should be holo- graph (c) ; and, on the other hand, a writing holograph except in a substantial part is not privileged {d). When the fact of holograph and the subscription are denied, it seems question- able if the mere statement in the deed itself is to be taken, even SlS jjrima facie evidence, to connect the party with the writ- ing (e). 2. Date. — It is a question of much importance in a practical view, what faith is due to the mention of a date in a holograph unattested writ, as that on which it was executed ; and it seems to be clearly ascertained, that it proves its date as against the party founding upon it only {f). But although an heir is entitled to the presumption that unattested holo- graph deeds, which directly atifect the heritable estate of the ancestor, were granted on deathbed, the user of the deed has been allowed to elide the presumption by contrary evidence (fj). Where the question of deathbed is not involved, it is irrele- vant to allege that a holograph unattested testamentary deed bears a false date (A). It is thus manifest, that the custom of unskilful persons writing their own settlements or other deeds of importance, is attended with great risk to the ob- jects which they have in view, and it often gives rise to vexa- tious questions. 28 Form and ) jy IIOLOGRArH DEEDS. IwJu!^ Authentication, i t VV nts,. (a) CuiTcnce, Juno 1688, B. S. 2. 121; Paterson, lOtli July 1717, M. 9441 ; Gillespie, 22tl Dec. 1831, F. C. and S. 10. 174. (i) Sec Gillespie, as above. (c) Vans, 23d Jan. 1675, M, 16,883; but the authority may require con- firmation. (d) Heriot, Nov. 1681, M. 17,020. (e) Donaldson, 12th June 1711, M. 11,511 ; EUies, 1st July 1630, B. S. 1, 312; Inglis, 1st July 1631, M. 16,962; A. and B. 21st Dec. 1638, B. S. 1. 103; but see Ersk. 3. 2. 22, and E. of Rothes, 9th Dec. 1633, M. 12,605. This case appears to have been decided in circumstances extremely favourable to the deed. (/) E. of Dunfermline, Jan. 1674, 1 B. S. 703; Bell, 20th Jan. 1672, M. 12,607; B. S. 2. 138. (g) Ross, 27th June 1699, M. 12,612; Graham, 19thFcb, 1703, M. 12,614. (h) Yeats, 6th July 1833, F. C. and S. 11. 915. 18. Deeds subscribed by a number of persons — It is stated by Mr Erskine (a), that deeds signed by a number of persons, members of a corporate body, or even private in- dividuals, have been adjudged effectual without witnesses, the parties being presumed to have been witnesses to each other's subscription. - It may, however, be doubted if the cases (b) to which that learned author refers support the doctrine. They are at least at variance with an authority of more re- cent date (c) ; and there seems no ground for holding that the statutes give any countenance to the notion, that per- sons can be both parties and witnesses in one and the same deed (<^). (a) Ersk. 3. 2. 23. (h) Forest, 19th July 1676, M. 16,970; Seabox of Queensferry, 7th Jan. 1732, M. 16,899. (c) D. of Douglas, Nov. 1742, and 7th Jan. 1747, M. 17,033-5; Elch. AVrit, 11; B. S. 5. 744. (d) The point has been ruled contrary to Mr Erskinc's opinion l)y Miller, 29th May 1835, F. C. and S. 13. 838. 19. Delivery of deeds — The subject of the delivery of deeds is not strictly comprehended under that of their form and authentication ; but as a preliminary which it is the duty of the practitioner to regard, it may be here briefly noticed. The rule is, that deeds which do not contain mutual stipula- tions or obligations, (called unilateral,) must, to be binding on 29 Form and ) 1 D. DELIVEUY OF DEEDS. -j ^r"'^" Authentication. ) / >> nts. the granter, be delivered to the grantee, or to a third person for his behoof. But no ceremony is required. It is sufficient that the deed be in the hiwful custody of the person in whose hands it is found. In doubtful cases, a third person is presu- med to hold for the grantor, when the deed is gratuitous, and for the grantee when onerous. The agent or doer of the grantor is not accounted a third person, even where, as a trustee, he is one of those to whom the deed is granted ; he liolds his client's documents on his account. Ersk. 3. 2. 43-44; Bell's Piiuc. 22-24. See Ramsay, llth July 1833, F. C, and 11 S. 967. 20. Deeds valid without delivery 1. Deeds inter vivos. — Mutual deeds or contracts, (called bilateral or multi- lateral,) may be considered incapable of delivery, and are va- lid in whosoever custody they are found. Deeds in which the granter has an interest, e. g. a conveyance with a reserved liferent, arc effectual without delivery ; as are those which the granter lies under an obligation to execute ;■ and deeds in favour of children are presumed to be held by the parent for their behoof. 2. Deeds mortis causa. — Testamentary deeds are valid although found in the repositories of the granter afterhis death. Settlements containing a clause dispensing with their delivery, are presumed to have been executed with the intention of their having immediate efi'ect as completed and binding deeds, and only retained in order to be in the power of the granter during his lifetime. So long, therefore, as they continue in his possession, they are revocable without a reserved faculty. 3. Equivalent — Registration in a public register for preservation or execution, is equivalent to delivery. Caution must therefore be exercised in recording entails, or other deeds of settlement, during the grantor's lifetime, unless a power to revoke is reserved. Ersk. 3. 2. 43-4; Bell's rriiie. 22-24. See liauisay, llth July 1833, F. C, and S. 11. !)(J7. 30 Au:ir.™,e"'L. I 21. NOTARIAL INSTnUMENTS. | '^ TITLE III. OFFICIAL WRITS. 21. Notarial instruments — The writs which are here termed official hold a middle place between public and pri- vate writs. (1 .) Notarial instruments are attested by the sub- scriptions of a notary and two witnesses. The designation of the witnesses in the body of the writ, in instruments of sasine and of resignation ad remanentlam, depends upon the provisions of the statute of 1681, and is subject to the same rules as in private deeds. (Above, § 14, Art. 6.) The no- tary subjoins, on the last page of the instrument, what is - styled his long doquet (a), and he subscribes his motto, name and surname, with the addition of the letters N. P., as the initials of Notarius Publicus. (2.) Instruments of sasine and resignation appear to have, from the earliest times, been subscribed by only one notary ; and in order to exclude them from the operation of the act of 1579 (h\ which requires two notaries and four witnesses in the attestation of writs of im- portance for parties who cannot write, a clause was inserted in a subsequent statute (c), to the effect that the provisions of the former should not extend to instruments of sasine, in at- testing which, one faithful notary, with a reasonable number of honest and famous ivitnesses, should be sufficient. Two witnesses have accordingly been sustained as a sufficient num- ber under this enactment (d), a result produced by the prac- tical inconvenience of obtaining the presence and subscrip- tions of four witnesses (e). Custom has extended the rule thus established to all other important notarial writs ; and as these are but supplemental, and mere testificates of facts and ceremonies authorised by other deeds, there is not the same reason for the employment of a large number of official per- sons and witnesses in the attestation of sasines and the like, as in the execution of original documents for infirm or illite- rate persons. (a) Et ego vero A. B. clericus Edinburgensis Diocesios ac Notarius Publicus auctoritate regali ac per Dominos Concilii ct Sossionis secundum tonorem Acti Parliamenti adniissus Quia prcomissis omnibus ot singulis dum sic ut jjraemiUitur dicerentur agercntur et, fiorcnt una cum pracnominatis testibus prsesens pcrso- naliter interfui eaque omnia et singula prsemissa sic fieri et dici vidi scivi et 31 Form and 1 2I. NOTARIAL INSTRUMENTS. \ >ius and witnesses on every page, although this is necessary only on each leaf (c'), or, when the deed consists of one sheet, on the last page (/). 3. Doquet The attestation or doquet of the notary must express the number of leaves of which the deed con- sists (y), and practice has extended the provision to the number of pages. But when the deed consists of only one page, the mention of that fact is not held to be a solemnity (h). An error in the number is carefully to be avoided. If stated to be less than the true number, the instrument would in all probability be set aside, as not duly authenticated ; and if greater, the result will much depend upon the appearance of the docu- ment («'). It is customary to express in it that the deed is written by the notary himself, or by another, or partly with his own hand and partly with another hand ; but as this is not a statutory solemnity, an objection, that material words had been inserted by the notary himself, although he attested that the deed was written by another, was repelled (k). The doquet is the proper place for referring to deletions in the body of the instrument, which ought to be noticed by the line and the number of words deleted. The terms of the doquet, as con- nected with the ceremony of infeftment, are noticed below. (a) 1686, c. 17. Our SovercignLord taking into his considei-ation that seasins do extend to great length by reason of inserting and repeating of the whole provi- sions of the charter therein Therefor his Majesty with advice and consent of his Estates of Parliament, for the more easy and commodious perusal thereof statutes and ordains that it shall be lawful for parties if they think fit to cause write and extend their seasins by way of book, the attestation of the notar condescending upon the number of the leaves in the book, and each leaf being signed by the Notar and witnesses to the giving of the seasin And ratifies all seasins already writ- ten by way of book by warrand of his Majesty's Privy Council. (6) E. of Finlater, June 1716, M. 16,954; Dufi; &c. v. E. of Buchan, Jan. 1725, M. 16,955, (but reversed) ; D. of Hamilton, 9th Dec. 1762, M. 16,956; Ersk. 3. 2. 16. (c) D. of Iloxburghe, 17th July 1741, M. 14,332 ; Clerk and Waddcll, 7tli Feb. 1752, M. 14,333. (d) A. of S. 17th January 1756. (e) 1686, c. 17, as above; Carnegie, 26th Fob. 1796, M. 8858. (/) Kirkham, 21st May 1822, S. 1. 423. {g) 1686, c. 17, as above. See page 30. {h) Morison, 16th Dec. 1826, F. C, S. 6. 150. (i) Dickson, 3d March 1829, F. C, S. 7. 503. (A) Dickson, 24th Feb. 180 J, M. App. Tailzie, No. 7. ;33 ,^rVr \ 23. EUASUUES. \^^'^T Aulhenticatioii. ) < in M rits. TITLE III. VITIATIONS IN WRITS. 23. Erasures, &c — 1. Vitiation by erasure and deletion ( 1 .) The rules with respect to vitiations affect equally all classes of writs, with the exception of notarial instruments. The pre- sumption is against the validity of deeds liable to the objection of vitiation; as a writing, to be above sus})icion, must, from its very nature, be engrossed on an undefaced substance, and com- plete in itself («). Vitiations, according to Lord Stair (b), are of three kinds ; by deletion, rasing, and superinduction ; which last consists not only in adding or altering letters, but in intro- ducing monosyllables, or short words, between other words. The worst kind of deletion, (his Lordship observes,) is when the words scored out cannot be read. They are presumed to have been in substantialibus, unless the contrary appear by what precedes or follows. Of rasing, he says, that it is more incident to writs on parchment than on paper ; but in practice, it is to be feared there is too much in both kinds, and questions of a highly vexatious nature thence frequently arise. (2.) At an early period, when fraud was not alleged, the words vitiated were generally allowed to be supplied by the evidence of the testamentary witnesses (c). ISIore recently, the lean- ing was the other way, and a vitiation even in the date, which is not a statutory requisite, was held fatal to the deed (d), (3.) The principle is now however received, that each and every w ord of a probative deed is in itself probative ; and the rule has, in several recent instances, been followed, to exclude words introduced between other words, and likewise words deleted or written on erased parts, from the tenor of the writ, which is read without them, and when these are not essential, and no presumption can exist that the erased words were material, to support the deed (e). Courts must, in the general case, decide upon such questions from the appearance of the writ, and with- out having any light thrown upon the import of the words deleted or erased, when they have been wholly defaced, except by the context ; and if it shall not thence clearly appear that the words were immaterial, it seems the safer course to adopt Loi'd Stair's rule, and reject the deed as vitiated in substanda- 34 .^ornwnd J 23. ERASURES. 5 T' wlr Authentication. S ( *" ^^ ' '^''• libus. There can exist no apology for vitiations. A deed accidentally blundered may be again engrossed prior to its exe- cution, and where time presses, there is a remedy well known to the practitioner ; (above, § 14, Art. 8, 9). The question may assume another and a very different shape where an al- legation is deliberately made that erasures have occurred through the fraudulent interference or connivance of the party objecting to the deed, or deletions have been caused by mere accident. For such cases a remedy ought to be provided ; but, in ordinary circumstances, it is plainly for the ultimate advantage of practitioners, as well as of their employers, that the strict rule should be enforced. (4.) The vitiation, or acci- dental cancellation, of a substantial part, such as the name of an instrumentary witness, or of a disponee, is thus fatal to the deed (f) ; for the instrumentary witnesses are not now admissible to verify words appearing on erasures (//), although reference to the oath of the granter, that they were so written prior to his subscribing the deed, seems to be competent (A). When deeds are executed in duplicate, it has been thought that words written on erasures in one of the copies might receive support from the other copy, if undefaced ; but to jus- tify the conclusion, that the duplicates are identical in tenor, it is plainly essential that no presumption shall exist of the words erased having been material (i). See § 14, Art. 8. 2. Interlineations Words added between the lines in a deed are not objectionable, when they only make up the sense. In other respects they are regarded as forming no part of the deed (/<;). 3. Blanks. — Spaces occurring in deeds, on which no words are written, or scores made with the pen, are of a more dangerous nature than vitiations by deletion, erasure or super- induction, as in these cases, the paper being damaged or defaced, or the writing crowded, the alteration is easily per- ceived ; whereas a blank may be filled up at a distance of time, with the same hand, in such a manner as to elude observation. When blanks, in important clauses, have obviously been filled up after the execution of the deed, it is read without the words thus inserted ; and the presumption is, that they were so filled up, if in a handwriting different from that of the writer 35 . j;'""'"'";'-^ \ ^^- I-KASUIILS. jVitialions Aiulienticatioii. ) . ^ in Writs. of the deed, or in different ink, unless the inserter of the date, place and witnesses shall have mentioned in the testinf]^ clause that they were tilled up by him (/). But the Court will not, on slight grounds, entertain an allegation that a deed ex facie probative was blank in an essential part at the time of sub- scribing (m). It follows, that where blanks are filled up at that period, by one who is not the writer of the body of the deed, his name and designation, as the writer of the parts so filled in, ought to be inserted by himself in the testino- clause («). (a) Pitillo, 22a Nov. 17(J1, M. 11,536; E. of Bute, Kstli July 1712, M. 11,545. (6) Stair, 4. 42. 19. (c) Arrol, Feb. 1730, M. 12,285. (d) Merry, 6th Feb. 1801, M. App. Writ, 3; affirmed on appeal. (e) Keir, Feb. 1597, M. 17,062; Kemps, 2(1 March 1802, M. 16,949; Adam, 12th June 1810, F. C. ; Traquair, 26th June 1822, F. C, 1 S. 527 ; Morison, 30th June 1829, S. 7. 810. (/) E. Bute, 18th July 1712, M. 11,545; Gibson, 16th June 1809, affirm- ed 20th April 1814, Dow, 2. 270 ; Reid, 7th March 1835, F. C. and S. ((/) Kcid, 24tli June 1834, F. C. and S. (/() Ersk. 3. 2. 20. (/) Strathmore, 1st Feb. 1837, F. C. and D. 15. 449. It is to be observed that the case did not turn on this point, the erasures being considered imma- terial. (A) Stair, 4. 42. 19; Lyon, 21st Dee. 1709, M. 11,544. "" (I) Stair, as above, Art. 4; Pentland, 22d May 1829, S. 7. 640. Sec Aber- nethie, 16th Jan. 1835, S. (/h) Baillie, 25th June 1828, S. 6. 1016. («) 1593, c. 179; 1681, c. 5 ; above, p. 8, 9; Stair, as above. 24. Erasures in sasines, &c. — Erasures and other im- perfections in notarial writs may be remedied by engrossing them of new ; for being testificates of antecedent facts, they may be written and subscribed at any period prior to being produced judicially, or presented for registration. Until a very recent date, sasines containing vitiations in substantial parts were, after registration, subject to the same objections as other deeds (a). But, by a late enactment (i), it is declared that no challenge of any sasine, or instrument of resignation ad remanoifiam, shall receive effect either by reduction or exception, on the ground that any part of the instrument is written on an erasure, unless it shall bo averred and proved c 2 36 Form and J 24. ERASURES IN SASINES. j ^''V^!'""* Authentication. ) ( in AV nts, that such erasure had been made for the purpose of fraud, or the record is not conformable to the instrument as presented for registration. Instruments of sasine projmis mmiibus, and instruments of resignation and sasine propt-iis manihus in bur- gage subjects, are excepted from the enactment. The statute has a retrospect so as to exclude all actions wherein judgment was not pronounced prior to the 12th of May 1835. Words appearing, on the face of the instrument, to be written on erasures, and not transcribed into the register, will thus be presumed to have been so written after the time of record- ing. As the statute relates to vitiations by erasure only, de- letions ought to be mentioned in the doquet ; (above, § 22, 3.) It is remarkable, that the strongest argument for the passing of this salutary statute, that the identity in terms of the writ and the record exclude suspicion, was successfully employed in support of the execution of an inhibition wherein a word appeared interlined. It was maintained, " that in the regis- " ter it is fair and clear, which proves that it is not a vitiation " made since recording (c)." Words written upon erasures in instruments of sasine and resignation ad remanentiam are therefore read as part of the writ, if they appear on the record, in the same manner as if the substance on which it is written had not been defaced. Errors in the register had the same effect as when they occurred in the instrument itself, and this rule remains unaltered. The remedy is by new infeftment, and the registration of the instrument following upon it. (a) Innes, 10th March 1827, F. C, S. 5. 559, affirmed, 2 W. S. C37 ; Ilog- gan, 13th Feb. 1835, F. C, S. ; Howden, 10th July 1835, S. See M'Millan, 4th March 1831, F. C. and S. 9. 651. {!>) 6 and 7 Gul. IV. c. 33, (14th July 1836). Whereas an act of the Par- liament of Scotland, passed in the year 1617, intituled, Anent the Registration of Reversions, Sasines and other Writs, for the purpose of esta)ilishing certain public registers, in which the various sorts of writings affecting heritable property therein enumerated or referred to, were to be made patent to the lieges ; and by two other acts of the Parliament of Scotland, passed in the years 1669 and 1681, the provisions in the foresaid act are extended to instruments of re- signation ad remanentiam, and to writs affecting heritable property within royal burghs : And whereas various questions have arisen as to the validity of instruments of sasine and resignation ad remanentiam, recorded in such registers, founded on alleged erasures in the said instruments, not patent to the lieges, nor appearing on the record thereof, whereby a want of confidence in the security of the land rights of Scotland has been produced, which ought to be removed : 37 Form ami > 24. ERASURES IN SASINES. | ^''^'^ij'?" Authentication. ) ^ in Writs Be it TiiEUEFonE enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Com- mons, in this present Parliament assembled, and l)y the authority of the same That no challenge of any instrument of sasine, or resignation ad remanentiam, shall hereafter receive eflect either by reduction or exception, on the ground that any part of the said instrument is written on an erasure, unless it shall bo averred and proved that such erasure had been made for the purpose of fraud or the record thereof is not conformable to the instrument, as presented for registration : Puovided always, that nothing herein contained shall affect any judgment pronounced Itefore the 12th day of INIay in the year 1835, but that all parties who, before the said 12th day of May in the year 1835, shall have ob- jected judicially to the validity of any such instrument or instruments on the ground of erasure, in any suit in which judgment was not pronounced on or before the said 12th day of May 1835, shall be entitled to such costs as the Court of Session, in its discretion, shall think fit to direct : Pbovided also, that nothing herein contained shall extend, or be construed to extend, to in- struments of sasine or resignation and SAsine prnpriis manihiis ; provided also, that where any feudal title of property, or title in security, has been completed in order to remedy or supply defects arising from erasures in instruments of sasine, the validity of the said titles shall not be affected by any thing herein con- tained. (c) Lawson, 14th Dec. 1697, M. 11,541. 25. Unstamped deeds — Deeds (under certain inconsi- derable exceptions) must, by statute, be engrossed on paper or vellum bearing a stamp, which denotes a particular duty, according to the nature of the transaction. In a work of this description it is sufficient to refer to the statutes, which ought to be strictly obeyed. The want of the proper stamp is not fatal to deeds or instruments relating to heritable title. The rule seems to be, that they are not probative until the stamp is impressed upon them ; but that this may be done at whatever time the objection is taken ; and a party has been allowed to remedy the defect so as to validate an adjudication that had passed upon an unstamped deed. The penalty which is exigible by Government on the occasion of affixing the stamp to a completed deed, has in practice been effectual to cause a due attention to the statutes. (a) 44 Geo. III. c. 98 ; 48 Geo. III. c. 149 ; 55 Geo. III. c. 184; Bell, Com. i. 319; Pr. 22; Impey and Coventry on Stamp Laws; Lamont, 4th Doc. 1789, M. 1«,945. See Denniston, 7th July 1824, S. 3. 218; Munro, I8th Dec. 1830, S. 9. 225. CHAPTER II. DEEDS OF CONSTITUTION. TITLE I. HISTORY OF THE CHARTER. 26. Origin of the charter. — The orlofin of the char- ter, the leading and principal writ in the constitution of heri- table rights, is connected, in a material degree, with that of the feudal law and system, whence most of its essential pro- perties have been derived. The history of that system, great and striking, because extending at one period over the richest portion of Europe, and still influencing, in important respects, the laws and usages of those nations that acknow- ledged its predominance, has been largely discussed, and elu- cidated or darkened by a great number of commentators. It would be foreign to the practical purpose of a work of this kind to attempt more than the slightest sketch of the general nature and principles of that remarkable law, which, ema- nating from the ruins of the Roman Empire in the West, has left some of its most lasting impressions in a country over which that^dominion had never extended. 27. Feudal system. — 1. Orujin of feudal tenures. — The feudal system, although a striking and remarkable pas- sage in the history of nations, possesses none of those mys- terious features for which we are often told that it is dis- tinguished. Nor is its origin to be attributed to the supe- rior skill of the conquerors of the Roman provinces, in de- vising means for preserving their acquisitions : it was the natural result of the circumstances in which thev found themselves placed. Having nothing wherewithal to remune- rate their followers but the spoils of the conquered, and those of a destructible nature speedily disappearing before the swarms of the invadinjr hosts, the lands of the natives 3!) Deed, of 1 27. FEUDAL SYSTEM. 1 n"'nvLt ConstitutiDii. i ( tlie Charter. who fell in battle — a g^oodly numlxn-— were portioned out to the chiefs, and by them again subdivided aniong the war- riors of inferior rank. These grants were termed ■iniaieray (the word feudum being of more recent origin,) as being wholly gratuitous, the sole obligation required of and under- taken by the Jideles (or vassals («), as they were afterwards styled,) being of that precise nature which suited the state of constant turbulence that prevailed during a great portion of the middle ages — military fidelity. It is matter for the cu- rious to inquire among what particular division or tribe of the barbarians the feudal law first came into operation ; but the foundations of the system, in place of being laid by the Longobards, the Goths, or the Franks, or established in the ancient usages of the Germans and Gauls, arc inherent in hunum nature ; and it may be safely affirmed, that similar circumstances would again produce a parallel state of things. Accordingly, the nature and endurance of fees changed with the gradual consolidation of society. The original gifts or munera conferred as the rewards of past services, and revocable at pleasure, like the pay of a soldier, to ensure future fideli- ty, became, in the course of time, grants for life, and acquired the name of henofida. Finally, they received the title of feiida, when they attained to what Craig calls their man- hood. At this stage, they were descendible to heirs and transmissible to collaterals deriving right from a vassal in the fee. This last character was conferred by the Emperor Conrad, in 1020, on the eve of an important military expe- dition, which shews that the spirit of conquest retained in fidelity by the original precarious grants, had become so tamed down by the lapse of centuries, as to require a boon which made those grants the absolute property of the vassals, to rouse it to sufficient exertion. 2. Allodial rights We are informed by historians, and it is consistent with the experience of the world, that the conquerors of the Western Empire mixed with, in place of exterminating the inhabitants, and that, on their conver- sion to Christianity, nuiny among the invaders learned the lan- guage of the conquered, which, as more polished than the lan- guages of the barbarians, conthiued tobc employed on allpubhc 40 ^Dce ( the Cliarter. and probably an extensive description of lands, acquired by what we term a singular title, or, as expressed in the old forms, per venditionis, donationis^ cessionLs; vcl commutationls tltuhnn. Of these three kinds, allodial lands, and those acquired by purchase, &c. were transmissible at pleasure. But in process of time, all subjects whereof the holders had the absolute power of disposal, appear to have received the distinctive name of allodial, and titles to fixed property came thus to be of only two kinds (c), allodial, and henejicial or feudal ; the former importing a right of absolute property, and the latter a grant to be held of a superior. Forms like the language and laws becoming amalgamated, feudal grants, which became at length descendible to heirs, no longer substantially differed from allo- dial property ; and many owners of this last, in order to acquire a title to the protection of a patron, gradually resigned it into the hands of an overlord, receiving back the lands in the form of a feudal grant. Others were compelled, by the ravages of war or of fire, to apply to the prince for a recognition of their title, to supply that which had been lost or destroyed ; and a large extent of land was bestowed on the church and churchmen, who feued it out to vassals for an annual payment or return. By these means the feudal forms came at length to be universally received {d). (a) Valvasores, vassi and vassalli arc said to have been difTcrent classes of milites, who possessed feudal grants. INIuch speculation has occurred with re- spect to the meaning of the term vassal; (Ersk. 2. 3. 10.) Perhaps a less erudite derivation than some of those ascribed to the word may be hazarded. J'assi and vansalli appear to be essentially the same term, and to be derived from the Latin, vadcre, to march. Valvasor is probably the same word, with a prefix, derived from valere, to be strong. The valvasores were called valvasores reffis, vel reynl, and ranked next in dignity to the comitcs or counts ; (Const. Feud. 1. i. t. 1.) (i) The stylos of tiic middle ages shew in the clearest manner that the term alode was employed to designate lands descending by inheritance, in contradis- tinction to those acquired by purchase or otherwise. Take, for example, the 12th form of Marculfus, (1. i.) which is that of a contract of marriage, by which the husband gives to his wife, " villas nuncupufas illas sitas in pago illo quas aut " munere regio aut de alode parentum tenere videtur." In his 33d form, the heri- tage of a party is thus described : " Turn quod per regio munere per cepcrat quam " et quod per vcndiiionis, donationi.t, cessiouis, C07umulationis, titulum, vel de alode " parentum." Similar expressions are very frequent. Various interpretations havo been given of the word allodial. Being thus employed to express lands not held of any superior, it may perhaps have been derived from a, privative, and 42 Decclsof J 27. TEUDAL SYSTEM. j ."'l'^^ "^ Constitution. S } the Charter. Xvu, solvo. Allodial pi'operty was not solely such as belonged to the native inhabitants. Lands conferred by princes and the comites, and other greater vassals, were, in the early ages of fees, frequently granted so as to be descendible to the grantee's heirs, and transmissible at pleasure ; (see Marculfus, 1. i.) " Ut " ipse et poster itas ejus earn teneant et possidcant et cut voluerint ad possidetidum " relinqtiant ;" and the right was caWtid jus proprietarium. (c) Const. Feud. 2. 26, § 1. (d) Erskine, Ross, Hume's England, Leges Barbarorum, Const. Feud. Dal- rymple on Feudal Property. 28. Feudal conveyancing — 1. Origin and jirogress ]SIr Ross (a) has, with much ingenuity, dissected the forms of ancient Roman conveyances ; and it must be admitted, that the styles of deeds employed at the time of the fall of the Empire bear a marked resemblance to those now in use in Scotland, making allowance for the peculiarities of the feu- dal forms of conveyancing. Examples are given by him, from Mabillon and the Istoria Diplomatica of MafFei, of deeds of donation and sale, the letter or precept of possession, the mode of giving possession, and the form of registration. Many of these styles are in the form of a notarial instrument detailing the res gestce. The will of the disponee is testified by the delivery to the purchaser of a rod or baton before the witnesses, actual possession having followed in presence of the notary and witnesses. After the dissolution of the Empire, these forms became gradually adapted to the new state of things. In the Styles of Marculfus, a French monk, published about the year 660, is to be found a variety of forms, from which Mr Ross (h) traces the origin of the feudal ceremony of resignation, derived from certain usages of the Roman law (c). From the notarial certificate of the delivery of possession on the part of the seller to the purchaser, he infers the origin of the hreve testatum^ the written evidence of the feudal trans- mission or conveyance called the proper investiture, which took place in presence of the superior and the //are^ curice. In course of time, when transactions became more numerous, and superiors found it inconvenient to attend their courts in per- son, they appointed a deputy, called a Itailie, to represent them, to whom were directed their commands or precepts to receive their vassals ; and the delivery of sasine to the vassal, in virtue of these precepts, was thus called the improper investiture. 43 DoeJsof I 2fi. rtlDAL CONVEYANCING. \ ,]^'''l'!'^ "^ Loiisitilulioii. S I llie Charter. The precept, and the certificate hy the bailie following upon it, hear a marked reseinhlance to the epistolary orant or charter common in the middle ages, derived from the Roman conveyance, and the notitia (c?), or subsequent written declara- tion, made by a notary upon the fact of possession being given to the purchaser or disponee. In the improper investiture in use in Scotland, the precept of sasine or possession was some- times granted with reference to a prior charter of the lands, secwidum tenorcm diartcB confectcc ; but, most generally, the precept was first in date, and bore to be secundum tenorem chartce couJiciend) Craig, 1. 10. 32. (c) Hill, 17th Jan. 181.5, F. C. {d) Ersk. 2. 4. 11. 37' Feu-holding The tenure now chiefly in use in Scot- land, and thus the most important, is that oi feu-farm, (infeu- difirma feodo et hoireditate pro perpetuo,) and it differs in the greatest degree from the original military holding expressed by the term feudum. The origin of the word feu, as the name of a distinct species of holding, is not clear. It scarcely occurs in Craig, who describes this particular tenure under that division of ecclesiastical fees which were granted in ernphy- teosin aut ad libellum ; and he states, \hdii feudum adlihellum dare 5S ^''^''" "'^ I '^7 III- ii/>i .MM.' t History of Constitution. \ '^ ' • I I^l "HOLDIN O. j ^,^^^ ^,J^^^^ was nothing else than in perpetuam empht/teosm locare («). Em])]iijtt'osis was unquestionably the tenn orifrinally employed in charters written in Latin, to denote a holdin^r in feu-farm, (now expressed hy feudljirma) ; and our institutional writers {b) notice, more or less fully, the close resemblance of feu-holdino- to the empliytcosis or perpetual location of the Romans, from which it has apparently been derived. But it is not easy to perceive any resemblance between cmplnjteosis and the grant ad Ubellum. The terms, ad libellum dare, in the Const. Feud., were employed to designate a perpetual alienation to a purchaser, under the colour of a location, for an elusory annual return or pensio, to the exclusion of the rights of the superior (c). But, in tracing the origin of this holding in the Styles of the middle ages, it will be found that a grant in feu-farm has no resem- blance to a conveyance for an adequate price, and a merely elusory annual payment. The grant to which it bears the strongest likeness was made for a valuable yearly return or census in money or victual, and was probably framed by the churchmen solely upon the model of the Roman emphyteosis, who thus put to profit their extensive possessions. This hold- ing is therefore properly classed by Craig (c/) under the head of ecclesiastical tenures. It came in all probability to be dis- tinguished by the term^^'?^, as being the most common of the feudal tenures, and yielding the only constant valuable return to the superior. Feu-holding was the next step in the im- provement of land rights, after the tenure ofsoccar/e, (from soh, a plough,) which at an early period prevailed in Scotland [e) as well as in England, and was a grant of a small piece of land, for the service of cultivating other lands belonging to the grantor. This holding is as old at least as the Lec/es Burfforum, and it is recognised in several ancient statutes. It was at an early period (y) made lawful for the i)relates, barons and freeholders to grant subaltern rights in feu-farm, which were protected against the casualties of ward-holding falling to the Crown, and this permission was renewed by subsequent statutes. Feu-holding has sometimes, but incorrectly, been termed a location. Although probably derived from the Roman cnijt/ii/feosis, it differs from the hx-atio in being perpetual. Em- 54 Deeds of 7 0*7 ,,„., ,.„, „,»r.< ^ History of Constitution, l ^7. FEU-HOLDING. \ ^„^. Charter. phyfeosis implied a perpetual grant of barren lands, in order to their improvement. (a) Craig, 1. 10. 33. (b) Stair, 2. 3. 34 ; Mack. 2. 4. 6 ; Craig, as above. (c) F. 2. tit. 9. § 1. and t. 55. (d) Craig, as above. (e) See Charter in Appendix to Erskine's Instit. ; Dah'ymple on Feudal Property. (/) 1457, c. 71. 38. Casualties of superiority. — (1.) The fixed rights of the superior will be more fully noticed under the Heddendo clause of the charter, and the entry of heirs. They are, l^if, A title to exact the duties and services specified in the char- ter ; and, 2f/, To require production and exhibition of all deeds relating to the fee, which the superior may not have in his possession, or within his power, in order to his learn- ing their true nature («). For this it is sufficient that he be duly infeft in the lands. (2.) Besides those rights which are inherent in the superiority, there are others denomina- ted casualties, as occurring at uncertain intervals, founded partly in the feudal constitutions, but chiefly in custom, or express stipulations in the charter or contract by which the fee is constituted. The only qasualties which now exist, as affecting the feudal relation, are non-entry and relief. The former consists in certain privileges, which are forfeited to the superior by the delay of the heir to apply for a renewal of the investiture after the ancestor's death, and is common both to feu and blench holdings : the latter is a fine or payment due by the heir on obtaining such renewal, and applicable to feu-farm only. These are explained under another head. See Entry of Heirs. (3.) Burgage-holding and mortmain, in which the vassal never dies, have no casualties. (4.) The casualties of ward-holding, now abolished, were loard, rnarriaye and re- coynition. The first, where not taxed or restricted, entitled the superior to the whole profits of the ward-fee during the minority of the heir ; by the second, he had a right to a sum from the heir who had not been married before his ancestor's death, at the age of puberty, as the value of his tocher ; and the third implied a forfeiture of the fee, on the alienation of C^tl. I 38. CASUALTIES Or SUPERIOniTV. { ^'^^^^^ more than the onc-lialf without the superior's consent. (5.) The casualties of sifif/ie and liferent escheat fall to the Crown on account of crimes, and do not affect the constitution or transmission of feudal rights. (6.) Those of disclamation, which meant the judicial disclaiming of the superior as such, and of purpresture, incurred by the vassal's encroaching on the streets, highways, or comraonties of the King, or other superior, although not expressly abolished, have, in the pro- gress of society, become obsolete. (7.) The irritancy ob non solutum canonem, in feu-holding, which founds an action for having the right declared at an end, on account of the vassal failing to pay the duties for two full years, is not a casualty of superiority, but a ground for the direct forfeiture of the fee ; (below, § 52.) (8.) The composition of a years rent, pay- able by adjudgers and disponees, is a claim competent to the superior by statute (Z»). See Charter of Confirmation. (a) Ersk. 2. 3. 2-3. («-) Ersk. 2. 3. 5, and foil. 39. Nature of the rights of superiority and pro- perty — The right of the vassal in the dominium utile ov pro- perty has long been considered absolute, being fortified by means extraneous to the original nature of the feudal grant, whereby heirs and disponees are enabled to enforce a renewal of the investiture. The dominium directum or superiority, which, in the ages of personal military service, was the more eminent right, is now in substance reduced to a mere security over the lands for a yearly payment by the vassal, and a fine or grassum on the renewal of the investiture, fortified by an express or implied irritancy. Still, from the peculiar techni- cal structure of the feudal title, this lesser right continues to be in form a right of superiority, and cannot in a legal sense be regarded as a mere burden on that of property, the vassal being denied the power of extinguishing it by purchase or pay- ment. For although intermediate rights of superiority may, with consent of the owners, and by means of jjcculiar forms] be removed from the series, the actual possessor thus only ap- proaches more nearly to the Crown, which is the feudal head and paramount superior. The system of connected fees has 56 Deed, of ) 39. SUl'EUIORITY AND PROPERTY. \ J^^TJJI Constitution. ) ( the Charter. now become so thoroughly engrafted on our law and customs, that the question of a change from feudal to allodial rights is beset with many difficulties. It must be confessed, however, that the forms of our conveyances might, with considerable advantage, be shortened ; and it is believed that the great ma- jority of the profession would cordially approve of a remedy to the redundancy which exists in our styles. At the same time, it will be generally acknowledged, that any extensive alteration on a system which ages have consolidated ought to receive much and deliberate consideration. 40. General VIEW OF THE FEUDAL RELATION (1.) The - feudal system, originally introduced for rewarding, or retain- ing in subjection the soldiers and dependents of a rude age, has in Scotland given place to an artificial system of land-rights, based upon the principles, but diff'ering widely from the forms, that of old regulated the interests and obligations of the supe- rior and vassal. The feudal grant is by charter, which de- scribes the lands, and contains certain clauses called feudal or executive, that have originated in the altered usages of society, serving as authority to another, as the representative or bailie of the superior, to give sasine to the vassal. The char- ter, although absolutely binding on the granter and grantee ex contractu, is, in a feudal sense, a mere warrant (the titulus) for completing the investiture of the vassal. This is done by means of the ceremony of infeftment, (the modus transfcrendi dominii,) and the due authentication and registration of a cer- tificate of the fact, called an zw^^rwrne/i^o/'^tt^me. (2.) The vas- sal may, by disposition, or other sufficient deed of conveyance, transfer his right to another at pleasure ; or he may make it a source of credit, by impledging the lands in security of the loan of money, by forms strictly framed upon the feudal rules ; and the system of feudal conveyancing is so expansive, that these forms are adapted to the creation of burdens or securities, either by constitution, — by means of deeds and instruments relating to the loan as a separate transaction, or by reserva- tion, — the declaration of the burden in the deeds of transmis- sion of the fee. (3.) The right of the vassal, if not aliena- ted by him, passes to the heir duly declared by his own 57 Deeds of ) 40. FEUDAL UELATION. 5 .k"' rT ."^ Constitution. ) I the Charter. written provision or destination, or pointed out by law. (4.) All these transmissions and transactions, proceeding thus ac- cording to the strictest feudal rules, are completed either upon the principle of sub-infeudation, or by means of the sanction or cmifirmation of the original superior, who cannot withhold, whilst he has in general an interest to adhibit his consent. (5.) It is an inflexible rule, that no feudal or real right can be completed unless by means of a registered instrument of sasine, or of resignation adremanentiam. A title thus perfected, if flowing from the true proprietor, is preferable, therefore, to an inchoate or merely personal right, such as a warrant for in- feftment, although prior in date, and contained in the most onerous conveyance ; and, what gives stability to the system, a feudal title, followed by uninterrupted possession for forty years, becomes a legal right, to the exclusion of all other rights, whether prior or posterior in date ; and no inquiry is permitted into the origin of the title on which the property has been so enjoyed, unless on the plea of falsehood or fraud. (6.) The meaning of the word infeflment, so frequently used in relation to feudal conveyancing, differs considerably from that oi sasine. Infeftment was originally employed to denote those deeds, whether charter and sasine, disposition sasine and confirma- tion, or other titles of investiture, whereby a feudal right is completed. It still occasionally bears the same meaning, but more generally denotes the ceremony of infeftment. The word sasine often occurs in the latter sense, — to give sasine, meaning the same as to give infeftment ; but it usually means the instrument of sasine, and never the whole title or investi- ture. 41. Definition of a charter — The relation of supe- rior and vassal, constituted by charter and sasine, forms what Craig and the old feudists style the improper investiture. The obvious derivation of the word charter from the Latin charta gives it a wide meaning ; and we find in the forms of ancient wTitings that the term charta was used indifferently to denote any document by which a right was conferred, and was nearly synonymous with epistola, a term in general use from the epis- tolarv form which writings then assumed. The word charter 58 Deeds of > 41. DEFINITION OF A CHARTER. \ ^^^'clZit Constitution. ^ i the Charter. has now received a distinctive meaning", and applies to the writ, whether original or by progress, which a superior grants to a vassal or his disponec. The definition of a charter given by Mr Erskine, is perhaps too broad according to modern notions. He states, that " it imports not whether " it be executed in the style of a disposition or of a charter, " which differs from the other only in form, or barely of " a precept of sasine, or procuratory of resignation." But there seems to be a clear distinction, not merely in language but in substance, between a disposition or procuratory of re- signation, which is a mere warrant to the superior to infeft a disponee, and the writ whereby he receives the supe- rior's confirmation of, or consent to, the transference. In a single instance, the terms disposition and charter are un- doubtedly synonymous ; but a feu-disposition is very distinct from the ordinary disposition of sale ; it is a feu-charter in every thing but the substance on which it is written. In prac- tice, the distinction between the terms charter and disposition receives the si\^port of conveyancers. The modern disposition of sale, is a deed of a highly complex nature, combining the properties of the original charter, the old deed of transmission or charter a me de superiore meo, and the conveyance by resignation. TITLE II. CLAUSES OF THE ORIGINAL CHARTER, 42. Arrangement of the clauses — By the original charter de me et successoribus meis, the lands are to be held of the grantor as superior, by the grantee as vassal, the holding beinf^r feu or blench according to the agreement of parties. Of old, the conveyances in use amongst the inhabitants of feudal countries were expressed in the Latin tongue, from a cause al- ready noticed. The introduction of the Roman and feudal laws into Scotland brought with it the language in which they were written, and all principal deeds, such as charters and sasines, were expressed in Latin, until that language was excluded from our forms by the Supreme Judges appointed during the Usur- pation in 1652. After the Restoration the former practice was restored by Act of Sederunt (a) ; but by force of custom the 59 Deeds of > 42. FORM OF THE CUAIITEU. ! n.S' Constitution, i t Charier. Latin has ceased to be employed in ordinary business, and it is now only used in deeds issuing from C'hancery, and sasines and retours following upon them. The charter consists of the following clauses : The narrative, dispositive, tenendas, re- dendo, clause of warrandice, assignation to the title-deeds and rents, clause oi loarrandice of that assiynation, ohlif/ation to free the subjects of public burdens, clause of registration, precept of sasine, clause of subscription or testing clause. («) A. S. (ith June 1G61. 43. Narrative clause (a) The introductory clause of the charter is styled the narrative. It contains, . 1 . Name and designation ofthegranter. — The superior or granter of the charter is here described by name, sur- name, and occupation or residence, and as heritable proprie- tor of the subjects. The term heritable proprietor implies his being infcft in the lands conveyed, and, in practice, the granter's title is uniformly completed before executing an ori- ginal charter ; but a charter granted by a party, holding un- der a personal right only, will be validated by his subsequent infeftment. See Disposition of Sale. When another besides the granter has an interest in the lands, he ought to join in the deed. With regard to the effect of a bare consent by one having such interest, Mr Erskine (disregarding the opinion of Craig) conceives that a party who has truly the right to the subject validates, by his simple consent, the conveyance to the vassal ; at least foimds an action of adjudication in implement against himself (J}). The question ought to be avoided by the use of the iQYm^ joint consent and assent, with reference to all the parties introduced, whether as proprietors or consentcrs. \ a- riations arising from the status of the granter are more fre- quent in the disposition of sale, to which reference is made. 2. Cause of granting or consideration. — It is proper and customary to state on the face of the clause whether the consideration be onerous or gratuitous, although this is not essential to the validity of the grant, but of importance only in a question of warrandice (c). But if a price has been paid, it must be specified (rZ). Whore the consideration is not stated, it is the opinion of Craig that the words " dedisse " GO ^ ... .. t 4o. NA1{RA1I\E CLALSL. ^ Cliirtpi- Constitution. S I L/Uanei, and " co7icessisse," import a gift, and " vendidisse " and " alie- " nasse" apvirchase. And Lord Stair conceives, that where no cause is expressed, the grant must be considered gratuitous. It is manifest, however, that questions of this nature ought never to occur. If the consideration be in money, it is im- perative on the practitioner to insert the amount ; and where the grant is for some other onerous cause, such as the con- veyance of other subjects to the granter, it is his duty to narrate the true cause of granting. (a) Know all men by these presents, that I A., heritable proprietor of the lands and others after disponed, in consideration of the sum of £. instantly paid to me by B., and of which I hereby acknowledge the receipt, renouncing all exceptions to the contrary ; and of the feu (or blench) duty herein after sti- pulated to be paid to me, and for other causes me moving. (6) Ersk. 2. 3. 21. (c) Stair, 2. 3. 14. {d) 48 Geo. III. c. 149, § 22. (e) Craig, 2. 3. 18. (/) Stair, 2. 3. 14. (l.) 44. Dispositive clause (a) — The dispositive is the rulino- clause of the charter, and cannot be contradicted or even limited by the terms of any other clause {h). This clause, with the tenendas, reddendo, precept of sasine, and testing clause, form the essential parts of the charter as a feudal grant and probative writing. It is observed by Mr Bell (c) that the dispositive clause contains in itself the essence of the charter, and that if the deed were to stop there, sasine might be obtained by means of a separate precept, or by means of adjudication in implement. This would hold true of a mere conveyance of property (d) ; but to constitute a, feudal grant, not only are verba de jiresenti necessary, but the holding and annual payment or prestation must, from the nature of the right, be expressed. Where the writing is even sufficient to warrant adjudication in implement, the proper feudal clauses must still be inserted in the charter following upon that pro- ceeding (e). The particulars which fall to be noticed under this head are numerous. («) Have sold, alienated, and in feu (or blench) farm disponed, as I, by these presents, sell, alienate, and in fou (or blench) farm dispone from me, my heirs and successors, to and in favour of the said B., his heirs and assignees 01 c'Stlli 44. D,SPOS,T,VE CAUSE. S S"! whomsoever, luM-itahly and irroik'oiuahly, alt, ;mil whole the lands of lying within tlio parish of and sliire of together with the tcinds, both parsonage and vicarage, thereof, and parts, pendicles and pertinents of the same. (6) Ross, 2. lo7-8; Bell's Pr. § 760. (e) Bell's Pr. § 7G0. (fZ) Stair, 2. 3. U. (e) See Craig, 1. 9. 20-1-2; Ersk. 2. 3. 11 ; F. 2. 23, infne. 45. Dispositive words — The terms of conveyance or alienation vary according as the grant is onerous or gratui- tous ; f/ice, f/rant and dispone, being the proper words to ex- press a gratuitous conveyance, and sell, alienate and dispone, a conveyance for an onerous consideration (a). But of these, dispone is the only term which appears to be essential. It may, indeed, be considered a verhum solenne in all conveyances, unless by resignation {b). Although the word alienate, or, as formerly written, annuilzie, is not indispensable in a technical sense, it has, in common acceptation, a wider signification than dispone, as including every mode of transmitting heritage ; and in interpreting clauses in deeds of entail, it was held by the Court to embrace tacks or leases of more than the ordinary endurance. But, in the House of Lords, the word dispone has been considered to have a legal meaning at least as broad as alienate. This latter term has probably been introduced, in its comprehensive sense, by reason of the frequent use by Craig of the Latin word alicnare, which he appears to have chosen as more classical than disponere, although both havei substantially the same meaning as the Scotch term, awai/put. See Entail. (a) See Stair, 2. 3. 14. (6) See Hamilton, 3d March 1815, F. C. 46. Heirs and assignees The convevance is made to the vassal, and his heirs and assignees whomsoever, words which are not now essential to transmit to his heirs, or em- power him to convey to a stranger. At one period, however, their use was of much importance ; for, after fees had in general become hereditary, they were not so in Scotland, but personal only, unless heirs were expressed («), or the con- veyance made to the vassal heritahh/ and irredeemably ; the 62 Dooasof ) 4G. HEIRS AND ASSIGNEES. j nS?r Constitution. S ^ cnaiter. point at least cannot be considered to have been settled until after Craig; wrote (b). With respect to assignees, the employ- ment of the term was essential to enable a vassal to convey his fee to a stranger, even before infeftment. In the opinion of Craio- (c), a grant which bore to assignees, empowered the vassal to convey without the renewed consent of the superior, even after he had taken sasine ; but this notion was not sanc- tioned by the Court {d). Fees were deemed stricti juris, so that after infeftment on a conveyance hceredibus et assignatis quibuscunque, the obligation of the superior was held to be fulfilled^ except as regarded the proper heirs of the vassal. These terms had thus a meaning very different from the words vassallo et quibus dederit, which imported a consent to aliena- tion ; but since the date of the statute which introduced a mode of enforcing an entry from the superior, whether by an heir or a disponee (e), no doubt could exist of the transmissi- bility of fees without express mention of heirs and assignees. («) Craig, 1. 10. 7; 2. 3. 28. (b) Stair, 3. 5. 5-6. (c) Craig, 3. 3. 31. {d) See Ross, 2. 305, and fol. ; Carnegy, 5th Feb. 1663, M. 10,375 ; Lock- hart, 14th Jan. 1696, M. 6411. (e) 20 Geo. II. c. 50. 47. Description of the lands — 1. Barony — In the dis- positive clause must be described, by situation, boundaries or other distinctive characters, every individual subject in which it is intended to give sasine, for an omission cannot be sup- plied by means of other clauses. These serve not to convey the subject of the grant, but to perfect the feudal forms (a). Lands and other subjects, erected into a barony which is nomen universitatis, are excepted from the rule : they may be conveyed so as to admit of infeftment by the territorial name (b). It is true, that in some instances, where the subjects were sufficiently identified, the Court have held that the particular description might be supplied by the production of relative documents, and infeftment be thus obtained ; but cases of this nature depend upon circumstances, and are not to be relied on by the conveyancer (c). 03 cStl } 47. DESCRIPTION OF THE LANDS. | 0;^;-| 2. Parts and pertinents — (1 .) It is asserted by Craig (d) that the addition to the des('rij)tion of the lands, of the words, cwn ]}ertincnfis, is unessential, and that pertinents follow the subject, by the rule, accessorium semper sequitur suum prmci- palc ; but as our decisions bear frequent mention of parts, pen- dicles and i)ertinents, and these terms form part of the com- mon style of the dispositive clause, it is the safe course for the conveyancer to follow the practice. This opinion of Craig is not supported by Stair (e), who imputes a distinc- tive meaning to the words, parts and pertinents, in questions relating to the effect of possession. (2.) Parts and pertinents include every thing connected with or forming part of the lands, (except the regalia,) that is not specially reserved from the grant ; — such, for example, as mines of coal (/) ; the solum or bed of a lake {(j) ; a right of pasturage upon other lands (A) ; trout-fishing in a stream forming the boundary of the lands (?) ; and likewise mills when not established as separate tenements, although contrary to the opinion of Stair {k). But they are not limited to what is above or below the surface : they com- prehend tenements or pendicles, whether contiguous or se- parate, which have been possessed as part and pertinent for the prescriptive period (I). An example of a discontiguous pertinent is a seat in the parish-church, which, having been ac(}uired by the proprietor of lands as sharing the burden of building the church, follows the property when conveyed to another (in). (3.) Where special description is practicable, it is generally advisable to employ it in deeds of conveyance. 3. Bounding description — (1.) The acquisition of con- tiguous or separate tenements, as parts and pertinents, is ex- cluded by the terms of the charter, when the vassal has what is styled a bounding infeftment, which confines the fee (ager limitatus) within the limits thus expressly assigned to it {n) ; such acquisition could only result from prescription, which implies both a title and possession conjoined. A bound- ing description has reference to marches, and not to measure- ment, which, unjcss limited by a taxative word, such as o/^/y, is held to be merely demonstrative, and is no bar to the ac- quisition of additional space by possession for the prescriptive 64 ■rv,»i- ,,<■ 1 ^ C Original DocU 01 ; ^y DESCRIPTION OF THE LANDS. ] chafer (Joiistitution. i tL^naiiei. period (o). (2.) But this taxative eiFect of a bounding descrip- tion does not exclude tlie operation of prescription so as to prevent another proprietor from acquiring a right to a sub- ject within the limits, as part and pertinent of his lands (p). (3.) The vassal may follow the boundary when of a fluctuating nature, as a river, or receding like the sea. And such is pre- sumed to be the boundary where the property consists of an island, or is notoriously situated on the sea-shore, or lies along the bank of a river. It is thus incompetent for another party, by artificial operations, to acquire or interpose property be- tween the lands and such receding or fluctuating boundary (q). (a) Shanks, 27th Jan. 1797, M. 4295. lb) E. of Argyle, 16th Jan. 1668, M. 9631. (c) Graham's Creditors, 3d August 1753, M. 49; Belches, 21st Jan 1815, F. C. (d) Craig, 2. 3. 24. (e) Stair, 2. 3. 73. (/) Craig, 2. 8. 17 ; Stair, 2. 3. 74 ; Ersk. 2. 6. 5 ; L. Burley, 30th Jan. 1662, M. 9630. (r/) Stair, 2. 3. 73; Dick, 16th Nov. 1769, M. 12,813; Baird, 2d Feb. 1836, D. 14. 396. (A) Borthwick, 14th Feb. 1668, M. 9632. (z) Carmichael, 20th Nov. 1787, M. 9645; Mackenzie, 26th May 1830, F. C. ; 8 S. 816 ; affirmed, 10 S. 864, App. 2. (A) Stair, 2. 3. 71 ; Kamsay, I7th June 1777, M. App. Part and Pert. 1. (Z) Craig, 2. 3. 24 ; Stair, 2. 3. 73 ; Ersk. 2. 6. 3 ; Countess of Moray, 20th Feb. 1675, M. 9636 ; Magistr. of Perth, 19th Nov. 1829, F. C. 8 S. 82. (m) Duff, 29th June 1769, M. 9644; Pcden, 21st Nov. 1770, M. 9644. In) Stair, 2. 3. 73 ; Ersk. 2. 6. 3 ; Young, 21st June 1649, B. S. 1. 390 ; Thomson, Feb. 1688, B. S. 2. 118; Young, 17th Nov. 1671, M. 9636 ; Tilli- coultry, 5th Dec. 1701, M. 12,743. (o) Ure, 26th Feb. 1834, S. 12. 494. (p) Ersk. 2. 6. 3. (q) Campbell, 18th Nov. 1813, F. C. ; M. of Twecddale, 14th May 1822, S. See Macalister, 7th Feb. 1837, F. C. 15 D. 490 ; Suttie, 26th May 1837, D. 15. 1037; Fisher, 3d June 1836, 14 D. 880. 48. Accessory rights — It is foreign to the purpose of this work to describe the various kinds of rights implied in the conveyance to the vassal. Reference is made to our insti- tutional writers. These rights were of old enumerated in the tenendas clause, which still, although uselessly, contains them in charters from the Crown. The redundancy of the tenendas C5 C^:^£.aL \ -l^- ACCESSORY RIGHTS. j I^.''^'"^' seems to have increased (a) from a desire to prevent disputes between superior and vassal, in regard to those rights and pri- vileges which it was intended to confer on the latter, and to be reserved by the former ; but as the rule is now firmly es- tablished, that all the ordinary rights of property are con- ferred on the vassal, unless in so ftir as specially reserved, the anxious enumeration of the old tenendas, even if contained in the dispositive clause, would be superfluous. (a) Ross, 2. 166-6. (ft) Ersk. 2. 6. 4. 49. What rights must be expressed. — There are cer- tain rights, which although intimately connected with, and truly parts and pertinents of land, yet as appropriated to the Crown or the Church by the laws and feudal customs of Scotland, are in the ordinary case understood to be excepted from the feudal grant (n). 1. Hecjalia in rjcneral — The regalia are divided by Mr Erskine into majora and minora. The former, such as the royal prerogative and the Sovereign's right of superio- rity, are incommunicable to subjects ; at least they are not communicable without the interposition of Parliament, such as the annexed property of the Crown. The latter consist of the right of waifs, forfeitures or feudal casualties, and of the succession of the Crown as last heir and to bastards ; but chiefly of that class of rights which have been alluded to as truly pertinents of land. These are baronial jurisdictions^ forests, salmon-fishinr/s, gold and silver mines, and the rights comprehended under the term res puUiccB, viz. navigable rivers, ports, ferries, hifjJnvai/s,fortalices, seagreens and shores. Some of these, such as navigable rivers and highways, cannot be- come private property ; but all the other regalia of this sort may be acquired by individuals by express grant from the Crown, or by prescription {b). With the single exception of salmon-fishings, they may be regarded as extra commercium. 2. S(dnioii-fisJii)tgs — (I.) At an early period it was thought that the right of salmon-fishing was inter regalia only where the sea filled, or salt water came, or where the fishing was with a coble or a trail net ; otherwise that it £ G6 cSutiou. } 49. WHAT RIGHTS MUST BE EXPRESSED. | ghartTr. passed under a clause cum piscationibus (c) ; but this view, although supported by a recent authority, has been rejected by the Court (d). (2.) Our institutional writers are generally agreed that this right cannot be directly acquired as part of an ordinary fee, unless by a grant from the Crown containing the words cum salmonum jriscationibus, or equivalent terms ; but that a charter cum piscationibus simply may be interpre- ted to mean a grant of salmon-fishings, by possession for the prescriptive period of forty years (e). The terms which have been sustained as equivalent to salmonum piscationibus^ are cum piscariis, which appear of old to have comprehended all sorts of fishings, and piscationibus tarn in marc quam in ' aquis dulcibus, from their wide meaning {f). (3.) As opposed to an ordinary holding, our older writers have instanced a ba- rony, as carrying with itthe'most of the regalia^ without being expressed, and among others the right of salmon-fishing (^) ; and this opinion would appear to have been generally enter- tained at an early period (Ji). Lord Stair (i) goes the length only of regarding a barony as a title to salmon-fishings with- out prescriptive possession, where the grant contains the com- mon clause cum piscationibus ; but even this modified opinion is controverted by Mr Erskine (A), who appears, however, to concede, that a barony is a good prescriptive title in itself without mention of fishings. And there seems to be no recent authority for carrying the notion higher. The result to the conveyancer is, that where salmon-fishings are to be conveyed along with lands, they ought to be expressly mentioned, even althougli the lands have been erected into a barony. (4.) The exercise of possession by rod and spear, or any possession less slender than by net and coble, is insufficient to explain a con- veyance CU771 piscationibus merely, co import a grant of salmon- fishings (/). (5.) It is not essential to the validity of a grant of salmon-fishings that it flow immediately from the Crown : the right may be transmitted by sub-feu (w<) ; and it flows from the nature of the positive prescription, which operates even against the Crown (it), that a conveyance a mm domino — from a party not in right of the subject, is a sufficient prescrip- tive title, if, in the dispositive clause, it bear with salmon-fish- ings, or with fishings merely (o). 67 Deeds of I ^j,^ ^.^^ ^^ EXPRESSED. ] J^iy,";' Constitution. ) ( Cliarlcr. 3. Teinds Tcinds or tithes are a separate subject, (separatum tcncmcnhun^) and arc snipetimes frranted to a vas- sal in a feu or blench charter of the lands. When feudalised they must be expressly conveyed. (1 .) There are three classes entitled to grant a conveyance of tcinds ; firsts those having rights cum dccimis inclusis ct nunquam antea separatism prior to the Act of Annexation of 1758 {p) ; secondly , titulars, to whom belong the free teinds of the parish, or those teinds (so far as not assigned to the minister) to which there are no heritable rights ; and, thirdly, proprietors having heritable rights to their teinds by grant or prescription — rights, in other words, which exclude the right of the titular. (2.) An heritable right to teinds may be personal or feudal. Originally, teinds seem to have been universally held by a personal right {q) ; and when not feudalised, they may still be vested in a dis- ponee of the lands, without infeftment, and that not only by express words, but by terms from which intention can be fairly inferred (r). Where, again, they have been once feudalised, teinds must be formally disponed by such terms, as icith the tcinds of the said lands, or icith teinds, parsonage and vicarage, and the conveyance completed by infeftment. (3.) The word teinds is the essential term ; it includes all the ordinary tithes of grain. Vicarage teinds (decimoi minor es) are due from animals, herbs, &c. and seem now to be considered as purely customary (.?). (a) Ersk. 2. 6. 13. (/>) Ersk. 2. 6. 13, and foil. (c) Leslie, 29th Juno 1593, M. 14,249; Gairlies, 30th July 1605, iM. 14,249. (d) Bell's Princ. § (i71-1100; D. of Sutherland, llth June 1836, F. C, 14 D. 960. (e) Craig, 2. 8. 15 ; Stair, 2. 3. 69 ; Ersk. 2. 6. 15. (/) Forbes, 3d Dec. 1701, M. 14,250. {g) Craig, as last cited ; Mack. 2. 6. 3. (A) Sec argument in E. of Argyle, 15th Jan. 1668, IM. 9631. 0) Stair, 2. 3. 69. (A) Ersk. 2. 6. 18. (/) Chisholm, 17th June 1801, M. App. Sahn. Fish. 1 ; and cases referred to as not reported ; D. of Sutherland as above, and cases in notes. (to) See Magistr. of Inverness, 27th Jan. 1775, M. 14,257. (n) 1617, c. 12; Ersk. 3. 7. 31. (o) Brown, 16lh Jan. 1680, M. 10,84-1. E 2 68 cSution.} •^•^- ''■"^^'^ ^^^""^"^ ''^^^' ^^ EXPRESSED. { Ster. (p) Ersk. 2. 10. 16 ; Hay, 7th Feb. 1810, F. C. ; Auchteiloncy, 23d May 1810, F. C. (q) See Dunning, 5th July 1748, (Kilk.) M. 15,069. (r) Ersk. 3. 7. 3-4 ; Connell, 2. 24ti ; Learmonth, 2Gth June 1829, F. C, S. (Teinds,) 192. (s) Ersk. 2. 10. 13; Hunter, 9th INIarch 179G, M. 15,728. 50. Reservations by superior — 1. Poioer to divide the sujjerioritij Certain rights are by law inherent in the domi- nium directum^ and need no reservation by the superior. These are the essentialia feudi—the essential qualities of the fee. Those called naturalia fcudi, which are natural to, and form part of the feudal contract unless otherwise agreed on, may receive an alteration from the will of the parties without destroying that contract, if intention be properly expressed in the grant itself ; and in modern practice the proper part of the deed for this purpose is the dispositive clause (a). One of the natural properties of a fee is the indivisibility of the dominium directum without the consent of the vassal [b) ; and as a consequence, when a superior dies leaving daughters only, the ordinary rule of law, that heritage divides among heirs-portioners, is suspended, and the right of superiority goes to the eldest (c). A vassal, therefore, applying for a renewal of the investiture, is entitled to an entry from the eldest of a set of heirs-portioners ; at least he is not bound to accept of more than one charter or precept (rZ). The same rule holds where two or more parties are joint proprie- tors 2^ro indiviso of a right of superiority {e). Where, there- fore, the superior wishes to have the power of dividing or splitting his fee, it is necessary that he reserve it in express terms (/). Of late, however, this privilege of splitting has become of little or no value, except in the division of feu- duties. The creation of county votes, which were attached to superiorities of a certain value under the old system of election, was a plentiful source of the division of those rights. 2. Mines and minerals The superior often reserves a right to the mines of coal, freestone, and other minerals within the lands. This reservation ought to be expressed in very explicit terms, so as to comprehend those precise sub- stances, and no others, which, by the agreement of parties. (in are to be excepted from the grant. An example of the clause is given in the notes (y). The form will of course be adapted to the peculiar nature of the substances known or suspected to belong to the lands (A). Mines of gold and silver were, by an old statute (/), given to the Crown ; but by an un- printed act, passed in 1592, (No. 12,) all mines which were thus inter rec/alla are disannexed from it, and power is oiven to the Sovereign to grant them in feu-farm to the freeholder of the lands, a term which has been interpreted to mean the vassal, whether immediate or remote, who is actual proprie- tor, on payment of a tenth of the free proceeds to the Crown ; and the terms of the act are held to vest a positive rin-ht in such proprietor to demand and enforce a grant from the Sovereign {h). 3. lihjlit of pre-emption — It may be the object of a superior granting a feu-right to re-accpiire the doDtinium utile, in the event of the vassal or his heirs wishing to dispose of it. This is provided for by a clause of pre-emption (/). As the power of alienation is now inherent in a feudal right (jn), a mere prohibition to convey, without, in the first instance, making offer of the subject to the superior, is ineffectual to prevent disposal to another for onerous considerations. To accomplish his object, the superior must guard the prohibition with a clause irritating (forfeiting) the vassal's right, and declaring all deeds of transmission to be null and void {n). But as a superior cannot, by force of words, overcome the statutory abolition of the power to prohibit alienation without consent, a-right of pre-emption may be reserved to the effect only of binding the vassal to offer back the lands to the supe- rior at their market value, or on such terms as can be got from another. It has accordingly been adjudged, that a clause of pre-emption at a fixed price is ineffectual against onerous dis- ponees, as being substantially of the nature of the stipulation de non aliennndo sine consensu superionim (o), which it was the object of the Legislature to abolish. (a) Craig, 1. 9. 27; Ersk. 2. 3. 11, 23; Jur. Stylos, 1. Iti. and fol. (fc) F. 2. 55, § 1 ; Craig, 2. 11. 18; Stair, 3. 5. 11 ; Ersk. 2. 2. 12; D. of Montrose, 31st Jan. 1781, M. 15,017, alBrmed on appeal; Maxwell, !Uh June 1741, Ekh. voce Sup. and Vas. -1; Graham, 23d May 1826, F. C, 70 lHca>ol / 50. KESERVATIONS. ) Phartor 4 S. 61;} ; Craig (2. 14. 7.) is of opinion, that feu-duties are divisible in the spe- cial case of heirs-portioners, although he does not maintain the divisibility of the right of superiority itself. His opinion is controverted by Lord Stair, (3. 5. iT.) (c) Baillie, 14th June 1678, B. S. 3. 234. Id) L. Luss, 30th July 1678, M. 15,028. (e) Jamieson, 21st Jan. 1837, F. C, 15 D. 408. (/) But provided always, as it is hereby expressly provided and declared, that it shall be lawful to me, my heirs and successors, to divide, alienate, dis- pone, and convey at pleasure the superiority or dominium directum of tlie sub- jects hereby disponed, in such shares and proportions, and to such person or persons as we shall think proper, without the concurrence of the said B., or his foresaids, who, by accepting hereof, agrees for himself and his foresaids to such Bplitting of the superiority, and consents to their holding under as many superiors as I or my foresaids shall think fit to interpose between them and my own supe- rior, any law or practice to the contrary notwithstanding. {(/) Reserving always to me, and my heirs and successors, the whole mines, minerals, metals, fossils, coal, limestone, freestone, slate, marble, and other stone, whether ornamental or for building, within the lands hereby disponed, and full power and liberty to us, or any person or persons authorised by us, to search for, work, win, and carry away the same, and to make aqueducts, levels, drains, quarries, roads, and others necessary for all or any of these purposes, upon payment of such siu-face damage as shall be ascertained by two persons to be mutually chosen by the superior and vassal. (A) Menzies, 10th June 1818; affirmed, 17th July 1822, 1 S. 225. This case shews the propriety of specifying the kinds of substances intended to be reserved. The one party maintained that mines and minerals include coal, marl, lime, clay, marble and other ornamental building stone ; the other, that they mean substances useful on account of their specific or chemical qualities, such as metallic ores, marble, lime, coal, &c. in contradistinction to mere mechanical masses, such as stones for building. (/) 1424, c. 12. Qt) D. of Argylc, 7th Dec. 1739, M. 13,526; E. of Hopetoun, 4th Jan. 1750, M. 13,527; Ersk. 2. 6. 16. (Z) It is hereby provided and declared, that it shall not be lawful to, nor in the power of the said B., or his foresaids, to sell, alienate and dispone the said lands and others, or any part thereof, to any person or persons, until he or they have first offered to sell the same to me or my foresaids, at the like rate they might get from any others: And if the said B., or his foresaids, shall fail to offer the same to me, or my foresai r 1 V Oi'iuiual Constitution. ) t Charter. and not inconsistent with the enactment wliich annuls clauses de non ulienando (i). The restriction to one particular form of alienation is deemed a competent mode of enforcing an onerous contract, a character which the feudal relation hears whether constituted hy charter or feu-contract. At the same time it is unquestionahle, that a prohibition against sub-in- feudation, although not an absolute bar to alienation, is a clog on the vassal's free and uncontrolled use of the property. Sub-infcudation is, in particular situations and circumstances, the only form of alienation which is available, or can be pro- ductive of any advantage to the proprietor. He maybe enabled to grant sub-feus of minute portions, when he could not dis- pose by sale of any part of the subject. It is therefore of much importance that the question should be set at rest. As the law stands, the conveyancer Mill act prudently in fencing the prohi- bition in the strictest form, by means of a clause both irritant of the deeds done in contravention of the prohibition, and re- solutive of the right of the vassal or disponer (/«). 5. Provision for the entry of disponees Connected with the prohibition to sub-feu, there is usually introduced a condition, that the disponees of the vassal shall enter with the superior within a fixed period after the date of the conveyance. The propriety or advantage of such a condition may perhaps be doubted, supposing it to be effectual as against third parties. If the validity of the prohibition to sub-feu shall ultimately be sustained, then it follows that a disposition, with an alter- native holding, a me vel de me, will be inept where sub-infeu- dation is excluded, since infeftment on a precept of sasine having relation to such a holding, would, until confirmation, create a base right, which, by the assumption, is excluded. Where, again, the holding must necessarily be public, a me, it could be of little practical importance to provide that dis- ponees sliould take immediate entry, a step which every pru- dent purchaser or creditor will voluntarily adopt, where the effect of delay may be to give a preference to a second disponee or bondholder, or an adjudger. But if that prohibition shall be found inconsistent with the statute of Geo. II., a provision for immediate entry would introduce an artificial non-entry un- known to the feudal law (/), of which the effect would pro- 76 Deeds of ^ r 1 \ Original Constitution. } ^ ^ • ^ESTIUCTIONS. \ ^,,^,,^^.. bably be, where the composition due by disponees is not a mere elusory payment but the legal fine of a year's rent of the subject, to limit in no inconsiderable degree the value of property subject to the restriction. It is understood that on the Blytheswood estate this provision is in full and systematic operation ; but the entry is taxed at a penny Scots, and dis- ponees have thus but little interest in opposing it. 6. Provision in regard to deeds of transmission. — A sti- pulation that deeds of conveyance shall be prepared by the superior's agent, has been viewed as highly dangerous to the superior, and its validity cannot be considered as fixed (m). It is believed that the superior in whose case its eifect was tried has entirely departed from it. This provision is not of the nature of a pecuniary burden, which can be made real by entering the sasine and the register ; and, therefore, when introduced in a feu-charter or feu-contract, it ought to be fenced with proper irritant and resolutive clauses. (a) Stair, 1. 14. 5. (h) 20 Geo. II. e. 50. (c) Irvine, 6tli March 1767, M. 2343. (d) Farquharson, 2d Dec. 1800, M. App. Clause, 3. (e) Tailors of Aberdeen, House of Lords, 23d May 1837, S. and M'L. 2. 609. (/) Heriot's Uospital, 30th July 1773, M. 12,817. {;/) Heriot's Hospital v. Gibson, 4tli May 1814, 2 Dow, 301 ; Gordon, 9th and I6th Feb. 1818, 6 Dow, 87 ; AValker, 11th March 1825, F. C, 3 S. 650; Pollock, 16th Jan. 1827, F. C, 5 S. 195; Brown, 14th May 1823, 2 S. 298. (/t) SeeCockburn, 9th Dec. 1826, F. C, 1st July 1825, 4 S. 128, and 23d May 1826, 2 W. S. 293. (J) Campbell, 23d May 1823, F. C, 2 S. 341, remitted, 29th June 1825, 1 W. S. 690, abandoned, (see opinions of Judges), 4th March 1828, 6 S. 679. (A) See Farquharson, as above ; Stirling, 4th Jan. 1757, M. 2342; Credi- tors of Hepburn, 8th Feb. 1758, M. 15,507. (Z) Ersk. 2. 5. 44; Gardiner, 7th March 1799, M. 15,037. (»t) See Campbell as above. 52. Irritancy ob non solutum canonem. — It was at an early period not unusual to introduce in feu-rights a clause irritating the right, or declaring the tinsel of the feu, by the vassal's delay in payment of the feu-duty for two full years ; and an act was passed (a) forfeiting the rights of all vassals in feu-farm, in the same manner as if a clause irritant 77 rJn^nlt:! \ ^2- IRHITANCY OB NON sol. can. j On,Mn:a Constitution. > ^ Charter. were specially engrossed in their infeftments. (I.) It is plain that this statute was intended to introduce a legal forfeiture of the same scope and nature as the conventional irritancy then in use, but the Court at first attributed greater force to a clause irritant than to the statute, on the ground that the clause would have other^wise been unmeaning {b). Lord Stair (c), however, attributes the same etl^ct to the statutory and conven- tional forfeitures, which are equally penal, in accordance with the words of the act ; and the distinction noticed by Mr Erskine, and expressed in some early cases, that the vassal may escape the penalty of the statute by payment before decree in a pro- cess of declarator, or, as it is called, purging at the bar, whereas that stipulated in a feu-right is absolute, or, in other words, incurred ipso jure, has not been sanctioned by the Court (d). In either case the vassal may avoid the forfeiture by paying before extract (e). (2.) Where it is the intention, therefore, to rest satisfied with the forfeiture incurred by delay in payment of the feu-duty for a i)eriod of two years, it is superfluous to introduce an irritant chiuse into the charter ; and, for a similar reason, it is necessary that the superior shall renounce the forfeiture in express terms, if it is meant to exclude its operation (/). Such renunciation, to be effec- tual against the singular successors of the superior, must be made real by insertion in the sasine following on the charter, and the register { 52. IRRITANCY OB NON SOL. CAN. j ^har onstitution, S ^ (b) Ersk. 2. 5. 27, (c) Stair, I. 17. 16. and 2. 3. 51. (d) Drummond, 23d March 1686, M. 7235; Lockhart, 14th Nov. 1770, M. 7244. (e) See as to effect of decrees in absence, Campbell, IGth Jan. 1777, M. 7252 ; Campbell, 7th March 1794, M. 321. (f) Jur. Styles, 1. p. 19. And it is hereby provided and conditioned, that although the feu-duty herein-after specified shall remain unpaid for the space of two years or upwards, yet it shall not, on that ground, be competent to me or my foresaids to sue for or declare an irritancy against the said B. or his fore- saids or to resolve their rights to the said lands and others, our power to do so being hereby expressly renounced, any law or practice to the contrary notwith- standing. (g) M'Vicar, 10th Feb. 1749, M. 4180. (h) M'Vicar, above; Magis. of Edin. 16th May 1834, F. C, 12 S. 593. 53. Provision in regard to substitutes of entail — It is no longer necessary to stipulate that the superior may refuse to enter a corporation («). But where the vassal con- veys the property to a series of heirs, among whom may be persons who are not his heirs of line, it becomes of importance to the superior to provide that he shall not be deprived of his casualties by the continued succession of the substitutes of tailzie qua heirs. (1.) By the statute relative to entails (b), the heirs and substitutes of tailzie are deprived of the power of ahenation, and creditors of the right to adjudge the lands ; but there is no provision in the statute for enforcing the acknowledgment by the superior of the series of heirs to whom they are destined. It must, however, be observed, that his refusal to recognise the entail could have received no sup- port from the clause of the statute which reserves entire his right to the casualties of superiority, for, at that period, the title of the superior to demand a year's rent as the compo- sition for the entry of a voluntary disponee had not been sanc- tioned by the Legislature. (2.) This defect in the statute of 1685 was remedied by the act of George II. (c), which pro- vides a mode of enforchig an entry from the superior by any person who shall purchase lands, and obtain a disposition con- taining a procuratory of resignation ; but although practice has sanctioned the right to compel an entry by any one who holds a procuratory of resignation, although not a purchaser of the lands, it does not follow that a disponee having a legal right .70 Decbof > ^3^ PROVISION AS TO ENTAILED LANDS. j ^nfe'i""! Constitution. > ( Cliarter. " to new infeftment in his favour," may require the superior to grant a charter embracing a series of heirs different from his own heirs whomsoever. (3.) In so far, therefore, as the ques- tion rests on the words of the statutes, it has been doubted if a superior is at all bound to recognise an entail which contains a series of heirs embracing persons not the heirs of line of the entailer ; but the siqjcrior has, perhaps, no legitimate in- terest to push the question farther than a reservation of his right to the composition of a singular successor on the entry of every stranger heir of tailzie. The Court have, however, avoided a decision of the point in those cases which have oc- curred, by reserving it for consideration, when a substitute of entail, not the heir of line of the person last infeft, should demand an entry (d). In this state of the law, it is plainly the duty of the conveyancer to adopt the clause which has been sanctioned by the Court (e). (u) Hill, 17th Jan. 1815, F. C. (b) 1685, c. 22. (c) 20 Geo. II. c. 50. (d) M'Kenzie, 4th July 1777, M. 15,053; D. of Argyle, 19th Xov. 1795, M. 15,068; see Lockhart, 10th July 1760, M. 15,047; and opinion of Lord Corehouse in D. of Hamilton, 22d Nov. 1827, D. (e) The reservation in D. of Argyle, above, was in these terms : " That the " said Duke, by granting this present charter, docs not exclude himself, or his " heirs, from any claim which he or they may have at law to a full year's rent " of the lands herein contained, whenever the heir of entail, to whom the " succession shall open, shall happen not to be the heir of line of the person " who was last entered and infeft by the said Duke and his foresaids." 54. Conditions or relaxations in favour of the VASSAL — 1. Renunciation of casualties. It is equally compe- tent for the superior to give as to reserve such privileges as are only natural and not essential to the fee (a). Of these are the casualties of superiority, which may effectually be re- nounced by express words inserted in the dispositive clause [b). 2. Power to buy up part of the feu-duty As it is an essential character of fees, that the vassal acknow- ledge the superiority by stipulating some lawful service, or the payment of a sum of money, or the delivery of a cer- tain article, yearly, such, however insignificant, must conse- quently, by the tenor of the grant, remain an obligation on the 80. Depik of ? - I . ^ Oiis^inal Co^JtitionJ ^-i- ^RELAXATIONS. ) Charter. vassal ; yet in feu-holdings the duty may be vested in the vas- sal as a separate blench fee, by conveyance from the supe- rior (c). But as the smallest and most elusory payment is sufficient to preserve the feudal character of the transaction, it is competent, and not unusual in practice, to introduce an obligation upon the superior to sell to the vassal a certain portion of the feu-duty at a fixed number of years' purchase. The insertion of the renunciation in this clause is required, in order that it may be transferred to the sasine and the re- gister, and so form a real burden on the right of superiori- ty(^). 3. Power to apportion the feu-duty among chsponees. — It is not unusual in charters of property feued out for build- ing, to introduce a clause (e) to sanction the division and ap- portionment of the cmnulo feu-duty among the disponees of the vassal when the subjects are sold in lots. The same may be done to meet the case of sub-infeudation (/). With- out such power of division, each purchaser or sub-fcuar be- comes liable as an intromitter in the full cumulo feu-duty ; but he seems to have a title to require the superior to assign to him his right, to the effect of his obtaining relief and re- payment from a co-vassal, or co-disponce, of sums paid over and above his own proportion [cj). (a) Ersk. 2. 3. 11. (J) Nasmyth, 8th Nov. 1748, M. 10,276; Montgomery, 10th Feb. 1749, M. 10,251 ; M'Vicar, 10th Feb. 1749, M. 4180. The clause disponed " all " and sundry the casualties of the said lands that might fall or become, in the " hands of the superiors thereof, either as liferent-escheat, non-entry, or by " contingency of not timeous payment of the feu-duties thereof, by and through " the said B., and his heirs and successors being put to the horn the space of " year and day, or through the heirs of the said B. or his foresaids lying out " unentered to the same after the death of their predecessors, or by not time- " ous payment of the said feu-duty." (c) Nasmyth, as above. \d) Nasmyth, 17th June 1740, M. 10,276. (e) Jurid. Styles, 1. 19. (/) Jurid. Styles, 1. 20. \g) Wemyss, 19th Jan. 1836, F. C, 14 D. 233. 55. Tenendas (a) (1.) The only purpose of the clause of tenendas^ or as it was of old called, clausula tenorh^ is to express the particular kind of holding in which the vassal re- 81 Deeds of ) ^^ TENEND\S 5 Original Constitution.^ JO. ILNENDAS. { Charter. ceives the lands ; l)ut anciently, the tenendas contained an anxious enumeration of those accessory rights and privile^-es, which are now understood to pass as parts and pertinents of the fee. Their insertion appears at no period to have had any real force ; and Craig (/>) asserts that the clause was not originally in this extended form, which, as he says, was borrowed from the practice of the English. The immediate source from which the form was derived does not appear to be well ascertained. It is, however, apparent from the styles of ancient deeds, that the tenendas in use in Craig's time was a mere amplification by the clerks or notaries, the conveyan- cers of that period, of a clause {c) which had been common in deeds of transmission of fixed property since the time of the Empire. Until a comparatively recent period, this clause contained a repetition of the lands and the series of heirs in whose favour the grant was made. (2.) Since the introduc- tion of the records, the tenendas, which is not transferred to the instrument of sasine, has become powerless for express- ing limitations on, or the destination of the fee, for which the dispositive is the proper clause of the charter in modern conveyancing. The Court have accordingly held, that terms occurring in this clause are ineftectual to convey, as a sepa- rate right, a privilege not expressed in the dispositive clause, and incapable of being acquired as part and pertinent ((/). But a servitude, such as thirlage, which is not a feudal right, but a bare quality annexed to lands, may be discharged by a clause cmn molendinis et multuris, contained in the tenendas of a charter by the proprietor of the lands having right to the servitude (c). (a) " To be holden, and to hold all and sundry the lands, toinds and others " above disponed, by the said B. and his foresaids, of and under me, and my «' heirs and suecessors whomsoever, as their immediate lawful 'superiors of tho " same, in feu (or blench) farm, fee and lieritage for ever, by all the righteous " meitlies and marches' thereof, as the same lie in length and breadth, with " houses, biggings, &c. freely, quietly, well and in peace, witliout any revoca. " tion or obstacle whatever." (6) Craig, 2. 3. 20. (c) The following is an example of the specification of the accessories of land, taken from the Forms of Mabillonius, applicable to a district of France, and of great antiquity. The form contains an inductive clause, to the eflect that tho Bomau law and ancient custom permit a man to give away his property for tho 82 good of his soul ; and it proceeds to convey, in very indifferent Latin, to a cer- tain monastery, a small place, (locello,) " cum terris domihus adiJicUs mannpiis " accolahus vuieis silvis prat is pascuis aqtds aquurumque decursihus movilebus et " iriwiovilebtis junctis et appendiciis et adjacentiis in se habentis ad se pertinentis." This enumeration, varying according to the circumstances of the country and its climate, is found in all the ancient conveyances of the Franks and Germans, but in the proper dispositive clause, (see Forms of Marculfus, &c. in Leges BarharoTum,') and before these had been adapted to the feudal usages. ^ (d) E. of Aboyne, 16th Nov. 1814, F. C. (e) Ersk. 2. 9. 38; D. of Koxburglie, 21st July 1783, M. 16,070. 56. Reddendo (ft) 1. General nature. — The clause of reddendo, (so called from the first word of the Latin form,) as expressing the payment or duty exigible by the superior from the vassal, and out of the lands, is of great importance. Originally, when the services due by the vassal were of a mi- litary kind, they were regulated by the custom of each parti- cular country or province. But when superiors came to grant their lands for profitable uses, it was necessary that the par- ticular duties to be rendered or paid by the vassal should be expressed, in order to overcome the legal presumption in fa- vour of military service. Since the abolition of ward-hold- ing, the military tenure of Scotland, it is probable that the holding of feu-farm, as most favourable to the superior (h), would in duhio be presumed ; but it is not easy to imagine an agreement to grant a subaltern right so defective, as to con- tain neither the holding nor the reddendo. 2. Blench and feu duties — (1.) The reddendo in blench- holdings is merely nominal, such as a pair of gilt spurs, or a snow-ball at midsummer, but it is most generally a penny Scots. It is usually expressed si petatur tantum^ (the last word not being essential) (c) ; in which case, or when the duty is a subject of yearly growth, the discharge of it is im])lied when it is not demanded within a year after falling due {d). The Crown vassals by blcnch-holding are relieved by statute {e) from payment or delivery of the duty, unless demanded with- in the year ; but a contrary practice continued to prevail in Exchequer, founded on a principle sanctioned by a prior sta- tute (/), that the Crown cannot suffer by the negligence of its officers {(j) ; and from the trifling value of the duties, the practice does not appear to have been challenged. (2.) Feu- 83 ^*^*''^'' '''' I ^.r. nr-i^iMTX-nr. ^Original Constitution, i "J*^- I^KnUENUO. J Chaner. duties arc in money, grain, cattle, kain-fowls, &c., or ser- vices. Services may still be lawfully stipulated which are of a valuable description, or merely occasional, as carriages of fuel (/i), attendance -with a boat and rowers for the us(^ of the superior and his family, and the like (i) ; but all services strictly personal and quasi military, such as hosting, hunting, watching and warding, are abolished by statute (A), and appointed to be converted into a yearly money payment, to be fixed by the Court. Those services which are legal, if exigible at a fixed time, are due only if demanded (/) ; and where a period is not mentioned, they must be demanded within the year (/«). Articles stipulated in kind, (ccaice,) when not delivered, must be paid for at the market prices of the several years in which they fell due («). Where a feu-duty is prestable in grain, the superior is entitled to such grain, of the kind stipulated, as the vassal's industry and skill enable him to raise on the lands ; and in the event of not deli- very, he may exact the highest fiars' prices in viodum poence (o). Fuel deliverable by the vassal is still exigible, although the supply which the lands contained be exhausted, imless it is otherwise expressed in the reddendo (/>). (3.) Feu-duties, whether prestable in money or in kind, must, according to Craig {q\ be demanded by the superior, (contrary to the rule in liquid obligations,) and that upon the ground of the lands. But where the vassal is taken bound to pay or deliver to the superior, as in the common form of this clause, or the reddendo consists of grain or some other fungible, or of fuel for the use of the superior's family, the duty is exigible at the manor- place ; and the vassal is not bound to carry it beyond the barony when the superior changes his residence (r). The vassal is not, however, relieved of this obligation by the decay of the mansion-house at which services are to be rendered : ho must still perform them, if recpiircd, at its site {s). 3. Duties arc attached to the superiority. — (1.) Feu and blench duties are in a feudal sense inherent in the grant. The charter must bear that a certain duty is payable in acknow- ledgment of the superiority, and this duty cannot be absolutely discharged (t). (2.) But there is no feudal incompetency in declaring that the duty shall bo payable to a third party, r 2 ' . " 84 Cor,tl.S 56. nEDDENDO. J ^S. although this is not practised in original grants. The rio-ht which the Lords of Erection hold to the feu-duties of church lands is constituted in this form. The superiorities of these lands having heen yielded back to the Crown, the feu-duties were reserved to the Lords of Erection, unless re- deemed bv the Crown at a rate fixed by King Charles I. and sanctioned by statute (u), and the right of redemption was afterwards renounced in Parliament (f). In the meantime, on the total abolition of Episcopacy, an act passed (iv), which annexed the superiorities of all lands formerly held of the dig- nified clergy or any beneficed person, to the Crown, and made it unlawful to interpose any other superior between the Crown and the vassals in these lands ; so that the vassals in ecclesiastical grants came thus to hold immediately of the Crown, but under the burden of the payment of their feu- duties to the Lords of Erection. By this means a statutory biu-den has been created in favour of parties not superiors of the subjects. These real burdens came usually to be trans- mitted by resignation in the hands of the Crown, although proper burdens by reservation may competently be conveyed by assignation, and the Court, by reason of the practice, held that assignation was not a vaUd form of transmission (x). (3.) This mode of making feu-duties payable to third parties, although merely statutory, and apparently inconsistent with feudal principles, appears to have weighed with the Court in a case which involved the question of feudal competency ; and they sustained a disposition of feu-duties granted in favour of the vassal himself, to be held blench of the superior, as effec- tual to oblige a singular successor in the superiority to grant a charter with a reddendo, wherein the duty should be taken pavable to the superior, or the person in rigid under the con- veyance (j/). (4.) Feu-duties may likewise be conveyed by a superior in the form of a subaltern grant, (called feudijirma feudifirmarum?) This was a common device in alienations of the patrimony of the Crown prior to the acts of annexa- tion {z). 4. Relief, or dujAicand of feu-duty (L) The reddendo of feu-charters usually bears, that the feu-duty shall be doubled at the entry of each heir, and sometimes, by special agreement, 85 Deeds of 1 5g^ REDDENDO. | On,MDal Constitution. S } Charter. at the entry of each sing-ular successor, (purchaser or other disponee not the heir of line) ; or that a fixed sum shall be paid by one or both, at the end of a certain period, (usually twenty-one years,) without regard to the situation of the fee ; and that this payment shall be in lieu of " all other burden, " exaction," &c. With respect to the duplicand or relief due by an heir, it ought to be expressed in the charter, and such is the usual practice ; for although Lord Stair, and after him Mr Erskine (aa), are of opinion that relief is due in feu- holdings, although not expressed, there are cases in which the Court have decided to the contrary {bb). (2.) In blench- holdings, the question is of no practical importance. (3.) The duplicand or casualty of relief (but not the feu-duty itself) may be renounced, or rather disponed, in favour of the vassal; (above, § 54, Art. 1.) 5. Recovery of duties — (1.) It flows from the original nature of a feu-farm right, which may be considered a feu- dalised lease, (§ 37,) that the superior may prevent the im- poverishment of the subject from which the feu-duty, if not elusory, is payable (cc), and has a right of hypothec for enforcing payment of it, as a landlord has against his tenant, over the fruits in rural {del), and the invecta et illata in urban tenements (ee). The hypothec of the superior for his feu-duty is, from the nature of their respective rights, necessarilv pre- ferable to that of the vassal for his rent. (2.) Feu-duties may be recovered by means of a personal action against the vassal, who continues liable, even after having alienated the fee, until the superior has received, or been required to receive, the disponee {ff) ; and as the liability is consequent on the acceptance of a charter, a singular successor, by takino- an entry, incurs a similar obligation, but only for the duties sub- sequently prestable {gg). The same personal liability attaches to an intromitter, for the duties of the years of his intromission, and consequently to a subvassal (lih), and also to a tenant, prior to his removal, to the extent of his current rent and arrears. Poinding of the ground is likewise competent as against a tenant, but to that extent only ; whereas the moveables of the actual heritor or proprietor, whether subvassal or disponee, are affectable, even for bygone duties, to the fullest extent (»). (3.) Adjudication of the dominium utile is competent for arrears 86 T)i-pil* nf ) r /■ ^ Original , r\ t 5b. IIEDDENDO. ) Chi^ter C uiistitution. \ {^^nariei. of feu-duties. (4.) A disponee of the vassal who assumes pos- session, even without completing a valid feudal title, thereby adopts the feu-right, and subjects himself in all its liabilities, and that although acting as trustee on behalf of creditors. The interest of the superior is not affected by the character in which the disponee has adopted the feu, who has his relief against his constituents {kh). (4.) Feu-duties do not bear interest without paction (//). 6. Modification^ or taxing of composition — (1.) It is not unusual in the reddendo to fix the composition or entry payable by a singular successor at a certain sum less than the year's rent exigible by law ; (above. Art. 2.) Such modi- fication, or taxing of the entry^ as it is styled, is effectual as between the superior and vassal, and their heirs, ex con- tractu, but not, it is thought, in a question with the singular successor of the superior, unless expressed in the dispositive clause {mm) ; (above, § 54.) (2.) In questions between the orio-inal parties or their heirs, the terms, if not express, will be interpreted against the vassal. Every limitation of the rio-hts of superiority is strictissimi interpretationis ; and unless singular successors be intended by the plain meaning of the words employed, the statutory composition is exigible {nn). (3.) It is not the practice to notice in the reddendo the com- position payable by a disponee, unless where it is taxed at a particular sum, or expressly renounced by the superior. 7. Can a vassal refute? — The question, if the vassal can refute or renounce his feu invito superiore, — without the consent of the superior, and thus relieve himself from duties prestable for succeeding years, has been variously answered. By the Const. Feud, (oo), this power in the vassal is distinctly recognised, and Craig (/»/?) expresses the opinion of others as well as his own in favour of the notion. Lord Stairs view is undecided {qq), and Mr Erskine gives no opinion on the point. In a recent case, the question has been determined upon principles arising out of the modern condition of supe- rior and vassal in relation to one another, which is that of parties to a mutual contract, perfected, as respects the vassal, by acceptance of the charter and possession of the subject. The Court and consulted Judges were nearly unanimous in the opinion, that the vassal cannot refute so as to relieve him- 87 self of his obligation for future duties {rr) ; and the same rule applies to a disponee who has adopted the feu-right ; (Art. 5). (a) •* Giving therefor yearly the said B. and his foresaids for the lands " and others above disponed to mc and my foresaids immediate lawful supc- " riors of the same the sum of L, in name of feu-duty at two terms in " the year "Wliitsunday and Martinmas by equal portions beginning the first " term's payment at "Whitsunday next for the half year preceding and so forth " thereafter at the said two terms in the year in all time coming and doubling " the said feu-duty the first year of the entry of each heir to the lands and others " foresaid and these for all other burden exaction demand or secular service " whatsoever which can be any ways exacted for the lands and others foresaid " or any part thereof in all time coming." (6) Stair, 2. 3. 33 ; Ersk. 2. 4. 7 ; Bell's Pr. § 684. (e) Semple, 16th Feb. 1627, M. 3447, \d) Stair, 2. 3. 33; Ersk. 2. 4. 7. (e) 1C06, c. 14; Ersk. 2. 4. 7. (/) 1600, c. 14. (^) See Stair and Ersk. last cit. (/() Munro, 20th June 1763, M. 14,497. (0 D. of Argyle, 3th Feb. 1762, M. 14,495. (A) 1 Geo. I. c. 34, § 10. (/) Wedderburn, 26th June 1606, M. 2156; D. of Hamilton, loth Dec. 1833, F. C, 14 D. 162, affirmed, 2 S. and M'L. 586. (;«) Young v. Feuars of Kinross, 13th Dec. 1693, M. 13,071. (»j) D. of Hamilton, as above. (o) Treas. of Edinburgh, 25th Feb. 1696, M. 4188. (j)) Munro, as above. (). (2.) This kind is the proper warrandice in conveyances of debts, for of these absolute warrandice imports not that the debtor is solvent ((7), but only dehitum subesse, that the bond, or other obligation, is a valid deed, even although the clause should bear that the sum shall be (/ood, valid and effectual (r). (3.) Warran- dice from fact and deed is the proper obligation, likewise, by trustees, who at the same time bind their constituents in absolute warrandice, or assign to the disponee the obligation contained in the deed under which they act (s). 5. Simple warrandice This lowest description of per- sonal warrandice is unknown in practice : it is equivalent to that implied in gratuitous deeds, and means that the granter shall do nothing in prejudice of the conveyance (t). 6. Real loarrandice (1.) It is implied in excam- bions. Excambion, or the exchange of one heritable subject for another, is a contract which is voided by the eviction from either of the parties of the lands received in exchange, and the proprietor who suffers the eviction has recourse upon his own lands although in the possession of a singular suc- cessor (m). Care ought to be taken to express the nature of the transaction in the instrument of sasine following upon the excambion (v). (2). The express conveyance {10) of other lands, in warrandice of the subjects disponed, is of the nature of a proper real security. It extends not merely to so much of the warrandice lands as is equivalent to the value of the subject of the conveyance at the time of eviction, but covers also the rents since that period, and the whole loss and damage incurred by reason of the eviction (.r). Real warrandice is thus a more perfect, but a less extensive security than abso- lute warrandice, since the former is necessarily limited by the 91 Deo.lsof I 57. CLAUSE OF WAUUANDICE. \?:''"T^ Constitution. ) I Charter. value of the warrandice lands ; but although it is usual, in a conveyance which contains real warrandice, to give personal warrandice from fact and deed only, a disponee will naturally demand absolute warrandice where there is doubt of the suffi- ciency of the warrandice lands. In excambions, the security, although real, can be made available only by resolving the agreement. The party resumes possession of his own lands by means of an action of maills and duties, without regard to the extent of the loss, as the only mode of effecting his re- lief. But, under a conveyance in real warrandice, the damage must be liquidated, and it is recoverable as a real burden, by assuming possession of the warrandice lands, or by adjudica- tion (?/). A clause of sale might perhaps, with good effect, be added ; but this sort of security is hardly known in prac- tice. A burden thus constituted over lands conveyed in real warrandice is worked off by the operation of the positive prescription in fortifying the title to the principal subject (z). Practical results The important rule to be observed in framinfif the clause of warrandice in the orijiinal charter, results from the doctrine, that express warrandice supersedes what is merely implied (aa). The safe course is thus to frame a clause adapted to the agreement of parties. When it is omitted, absolute warrandice is implied, according to Craig( Ji), where the charter bears an onerous cause of granting, even servitii prcestatio — the performance of services ; but this view is controverted by Stair (cc), who is of opinion, that unless there has been an anterior consideration in money or value, the vassal, on eviction, being free of the duties and presta- tions, has a claim of damages only when the eviction arises from the future fact and deed of the superior. This may have been an equitable doctrine at the close of the l/tli cen- tury ; but, at the present day, when the feu-duty is adequate and not elusory, the warrandice im})lied in the nature of the contract would probably be held to be absolute, and not merely from fact and deed, \\ here warrandice is express, and of a subordinate kind, warrandice of a higiier description against a particular deed is strictly interpreted {dd). (n) " Wliiih land?, toinds and others above disponed, with this feu (or blench) " riij'ht, and the infeftment to follow hereon, I bind and oblige inc and my 92 C^^L. \ ^7. CLAUSE OF WARRANDICE. \ gl^. " foresaids to waerant to the said B. and liis foresaids, at all hands, and against " all mortals." (h) Craig, 2. 4. 2; Stair, 1. 14. 7; 2 3. 46, in fine; Ersk. 2. 3. 25. (c) Stair, 2. 3. 46; BothwcU, 23d Dec. 1698, M. 16,613. (rf) Ersk. 2. 3, 25. (e) Ersk. 2. 3. 27 ; Stair and Ersk. as in (6). (/) Balfour, p. 318, c. 5; Drummond, 28th May 1549, M. 16,565. (ff) Cunninghame, 27th Jan. 1829, F. C, S. (Temck,) 175. This case was well considered, and the opinion of the majority of the Court contains an analy- sis of the prior cases, both reported and unreported. The clause of warrandice (which was found effectual) is in these terms : " Therefore we, the said A. and " B., bind and oblige us, our heirs, executors and successors, to warrant the said " C. and D., and their foresaids, from all payment of any tcinds or minister's " stipend furth of the said lands of E., in all time coming." The teinds were not conveyed to the disponees.— M'Ritchie's Trustees, 26th Feb. 1836, F. C, 14 D. 578. There the clause was thus expressed : " I bind and oblige me, " and my heirs and successors, not only to relieve the said B. and C, and their " foresaids, of the minister's stipend, and reparation of manses that may be " required furth of the said lands and teinds, in all time coming, but also to " warrant this my charter to be good and sufficient to the said B. and C, and " their foresaids, at all hands, and against all deadly, as law will." There was no stipend payable at the date of the charter, and the clause was therefore held applicable to future augmentations. See Roxburghc, 23d Jan. 1838, D. (A) E. of Hopetomi, 8th Dec. 1819, F. C. (i) Cunninghame, and M'Ritchie's Trustees, as above. (k) 1449, c. 18; Simpson, 14th March 1563, M. 16,565; Lady Pitferren, 19th June 1629, M. 16,577. (I) Stair, 2. 3. 46 ; Ersk, 2. 3. 29. (m) Stair, last cit. ; Ersk. 2. 3. 31 ; Sandilands, 21st June 1762, M. 16,599; Symington, 14th Jan. 1780, M. 16,637. (n) Haliburton, 25th June 1669, M. 16,591. (o) Lawson, 12th Dec. 1775, M. 16,636. (p) Craig, Jan. 1732, M. 16,623. (<7) Hay, 16th June 1664, M. 16,586. (r) Stair, 2. 3. 46 ; Ersk. 2. 3. 27. (s) See Forbes's Trustees, 15th June 1822, 1 S. 497. The following clause may perhaps be adopted with advantage: " Which lands, teinds and " others above disponed, with this conveyance of the same, and infeftment to " follow hereon, we, the said A., B. and C, not only bind and oblige our con-- " stituent, the said D., to warrant to the said E. and his foresaids, at all hands, " and against all mortals, and us, the said A., B. and C, to warrant against our " own proper facts and deeds only ; but we also hereby assign, convey and make " over, to and in favour of the said E., the clause of absolute warrandice con- «' tained in the said trust-deed above specified, whole tenor and effect thereof," &c. (<) Ersk. 2. 3. 25. (a) Ersk. 2. 3. 28; "Wardhouse, 14th July 1629, M. 16,578. (r) See Balfour, 14th Jan. 1788, M. 16,638, (w) I, A., SELL, ALIENATE and DISPONE, &c. ALL aud WHOLE (describe 93 Deed, of ? 57. CLAUSE OF WARRANDICE. j Oripnal Constitution, i ( Charter. principal lands,) as for principal ; and also, all and whole (narrate warrandice lands,) and that in spcejal and real wai-raudice and security of the said lands of (principal lands,) and pertinents thereof above disponed : So that, if the said lands of (principal lands,) and the pertinents, or any part thereof, shall happen to be evicted from the said B., or his foresaids, then and in that case they shall have free and immediate access, ingress and recourse to the said lands of (icurrandice lands,) and to the rents, maills, duties and casualties of the same, at least to so much thereof as shall correspond to the lands so to be evicted from thenceforth to be peaceably enjoyed and possessed, &c. (as in Jur. Styles, 1. 150.) (x) Ersk. 2. 3. 30; Blair, 6th Nov. 1741, M. 16,624. (y) Jur. Styles, 1. 150. See Bell, Com. 1. 694. (z) Trust, of Durham, 9th July 1800, M. 16,641. («(/) Stair, 2. 3. 46; Ersk. 2. 3. 27; Glendinning, 6th Jan. 1710, M. 16,616. (6ft) Craig, 2. 4. 2. (^cc) Stair, last cit. (dd) 0gilv7, 2d Fob. 1715, M. 4154. 58. Assignation TO writs and rents (a) 1. TVi-its Tliis clause, in so far as it relates to the writs or title-deeds of the subjects, extends only to an obligation on the superior to make them furthcoming for defending the right of the vassal, and that on all necessary occasions. This subject is noticed under the disposition of sale. 2, Jients — The assignation to the rents or maills and duties payable by the tenants and occupiers of the lands, may happen to be of advantage to the vassal, if he should delay to take infeftment on the charter : intimation of the assignation will in these circumstances exclude the future diligence of arrestment for the debts of the superior, or the effect of a prior or subsequent assignation, intimated after the assignation con- tained in the charter. After infeftment the vassal's riofht to the lands, and consequently to the rents, is real, and cannot be affected by the diligence of the superior's creditors. But it is thought that too much weight is ascribed to this infeftment, by a high .authority in feudal conveyancing (Z<), when he states, that if the purchaser has gone on to complete his title by sasine, he will be preferred to an arresting creditor, although the arrestment be of a prior date to the sasine. Such Mould be the effect were the rents arrested only current, and not payable till after the registration of the purchaser's sasine (c) ; but there seems to be no authoritv for lioldin"- that a vassal 94 Deeds of J 58. ASSIGNATION TO WRITS, &C. 5 r JSr Constitution. ) ' t Charter. or purchaser, by taking and completing an infeftment before the rents arrested have been made furthcoming, may compete with the arrester, provided they were payable prior to the using of the arrestment. The other cases relied on by that learned author appear to shew merely that infeftment is equi- valent to an intimation of the assignation to the rents, and as such excludes future arrestments (d). (a) " And further I hereby make and constitute the said B. and his foresaids my cessioners and assignees, in and to the whole writs and evidents rights titles " and securities of the said lands and others granted in favour of me my authors " and predecessors and that to the effect of maintaining and defending the said " B. and his foresaids in the right of the said lands and others and as the " same cannot be herewith delivered up I oblige myself and my foresaids to " make the same forthcoming to the said B. and his foresaids whenever they " have occasion for the same and that upon a proper receipt and obligation for " re-delivery within a reasonable time : As also I hereby assign transfer and " make over to the said B. and his foresaids the rents maills and duties of the " said lands and others from and after the term of Martinmas (or "Whitsimday) " next which is hereby declared to be the term of his entry," &c. (6) Bell, Conv. of Land. (c) Hautlie, I3th Dec. 1628, M. 2764. (rf) Erskine, 2d Nov. 1748, M. 2901 ; Webster, 13th July 1780, M. 2902. 59. Warrandice of the assignation (a) — This clause would appear to have no effect, beyond confirming the obliga- tion of warrandice implied in the nature of the transaction. A party bound in warrandice, by assigning the title-deeds to the purchaser or vassal, in so far protects the subjects against eviction, and himself from claims consequent upon eviction ; but he gives no new or separate right which must necessarily have separate warrandice. Warrandice, again, of the rents from fact and deed, is the precise obligation which the law imposes on the seller or superior without express paction. The subject conveyed, and consequently its yearly fruits, be- long to the purchaser from the term of his entry ; and as the price is calculated to the same term, the seller'?, connection with the subject as a source of revenue is then at an end. The rents are thenceforth payable to the purchaser, either under the assignation in the conveyance, or in virtue of his in- feftment ; and as the seller is not bound, unless by special agreement, to warrant the rental or the solvency of tenants, it follows that his obligation of warrandice can extend no far- 95 Co^nSi. \ ^'^- "'AUUANDICE OF THE ASSIGNATION. \ ^^;;^_ ther than to cover rents received by him or his factors, after the term of entry, or, in other words, to fact and deed. (a) " Wnirn assignation I bind and oblige myself and my foresaids to " warrant as follows, viz. in so far as concerns the writs and evidents at all hands " and against all mortals ; and in so far as concerns the rents maills and duties " from my own facts and deeds only." Note — It is advisable, as a general rule, to ascertain the extent of the superior's liability under this clause by means of an inventory. GO. Obligation in regard to public burdens (a) — (I.) This clause binds the superior to free the lands of all cess, minister's stipend, and other burdens due prior to the period of the vassal's entry. The general term, public and parochial burdens, includes poor's rates, repairs of manses and schoolhouses, and schoolmaster's salary, as well as cess or land- tax ; but not stipend or teind-duty, which is a burden inherent in the right of property, and not imposed by any particular statute (b). Statute labour has been held as personal to the actual possessor of the lands ; but the circumstances of the case were in some respects special (c). As burdens properly public aft'ect the lands and their rents, they are payable by the person who is actual proprietor of the dominium utile at the time they become due. For example, if the vassal's entry be at Whitsunday, he is liable in payment of the cess or land- tax for the year which commenced on the 25th of March pre- ceding that term, as being current at the time of his entry. It is thus necessary to insert an express clause of relief in the charter, where the intention is that the superior shall continue liable in whole or in part for future burdens, beyond the pro- portion effeiring to the amount of feu-duty ; and as a general clause of relief may, in certain circumstances, be interpreted according to the practice of the estate or the district (r/), it is advisable to express those particular burdens, of which it is agreed that the vassal shall be relieved. It has been ex- plained, that warrandice against payment of stipend does not necessarily include augmentations; (§ 57, 3.) (2.) The vassal is usually taken bound to relieve the superior of public bur- dens fjilling due subsequent to the period of his entry. ^^ hen this obligation is omitted, the superior seems to be liable in a 96 Co"St„°:„j - fiO. PUBLIC B.aDENS. j ^S! share of these burdens, in the proportion which the feu-duty bears to the rents of the lands (e). (a) " And FunTHER I hereby bind and oblige rao and my foresaids to free " and relieve the said B. and his foresaids of all cess minister's stipend and " other public and parochial burdens exigible furth of the said lands and others " preceding the said tei-m of Martinmas (or Whitsunday) the said B. and his " foresaids being bound to free and relieve me and my foresaids of the same " in all time thereafter." (h) See M'Ritchie's Trustees, 2Cth Feb. 1836, F. C, 14 D. 578. (c) Johnston, 13th June 1800, M. App. Public Burdens, 1. {,1) Bruce Carstairs, 23d Jan. 1773, M. 2333; B. S. 6. 661 ; Hailes, 624; affirmed on appeal. (e) Feuars of Kinross, 7th Feb. 1693, M. 13,071; Treas. of Edinburgh, 26th Feb. 1696, M. 4188. 61. Clause of registration (a) — Charters by subject superiors may bear a clause for registration, but in the books of Council and Session only (h). This form was introduced " for the greater security of purchasers and others;" but re- gistration is not made imperative, and the books of Court are at any rate not a register of real rights. (a) " And I CONSENT to the registration hereof in the books of Council and " Session, therein to remain for preservation, and for that purpose constitute " my procurators," &c. (h) 1693, c. 35. {Excerpt.) " And it is further hereby declared, for the " greater secm-ity of purchasers and others, that charters granted by subaltern " superiors may bear a clause of registration as well as dispositions, and that on " the said clauses, registration may follow, but only in the books of Council and " Session, and in no other record." G2. Precept of sasine («) 1. This clause is of com- paratively modern introduction. When superiors came to invest their vassals by the interposition of a bailie, in place of publicly in presence of the pares curioi^ their mandate or precept was executed by the delivery of possession by the bailie, who added at the end of the precept a memorandum of the fact under his seal {V). Bailies were chosen, it is probable, from among the clerical notaries, who, at an early period, practised in Scotland, and were the only persons ac- quainted with writing. In order to assimilate the writ that evidenced the transference of possession, to the notitia of the continental nations which were made out apart from the 97 ,.^''''.''^?'' ! 02. I'llECEPT OF SASINE. J Ori.-inal I onstitiilion. ) f Charter. lifera: or char fee, tlicy seem to have gradually introduced the practice of framinjj;- a certificate of the fact in the form of a separiite instrument of sasine or delivery. This instrument appears to have existed before the period of the return of James I. from England (/:■). Precepts of sasine continued to be engrossed in a separate form till the end of the 17th cen- tury. By a statute passed in 1672 (d), it was enacted, that all precepts on Crown charters should be engrossed towards the end of the charter, and practice soon extended this con- venient alteration to charters by subject- superiors. 2. Precepts subsist iintil validly executed (1.) These clauses, as mandates, of old expired on the death either of the superior or vassal, although procuratories in rem suam granted wholly for behoof of the latter. For remedy of the inconvenience thus experienced, it was enacted (e), that pre- cepts of sasine then existing, or to be in future granted, should in all time coming continue in full force, and be sufficient war- rants, not only in favour of the parties, but likewise of their heirs, assignees and successors, having right to them by a general service, disposition and assignation or adjudication, as well after as before the death of the grantors, or parties to whom they are granted, or both ; providing always, that the instruments of sasine taken after the death of either party ex- press the titles of those to w'hom the sasine is granted, " and " that the same be deduced therein, otherwise to be void and " null." From this enactment are excepted precepts of dare constat, which, as being granted to heirs as such, are strictly personal. (2.) The precept of sasine is not exhausted by infeftment, unless the instrument following on it be formal and valid, and duly registered. See liegistration of Sasine. 3. Form of the yrecept — (1). This important clause is in the form of a command by the superior to his bailie to give infeftment to the vassal of the subjects contained in the dis- positive clause of the charter, by the delivery of certain sym- bols of possession. It is thus the executive clause of the charter ; and although it may authorise infeftment in a more limited right than that conveyed (_/'), it cannot go beyond the dispositive clause. The name of the bailie being blank, the holder for the time of the charter is in our later j)racticc pre- o 98 cJ'n'uution. } ^^- rHECEPT OF SASINE. } ^;^_ sumed to be the representative of the superior ; but of old a commission of attorney from the Queen's Chancery was re- quisite to confer that character {(/). The precept must, how- ever, contain an express mandate to infeft the vassal by name (A). The person who produces the warrant to the bailie is presumed, from his possession of it, to be authorised by the vassal to receive infeftment for him, and is called his procura- tor or attorney ; but this presumption is not absolute. It may be excluded by contrary evidence (i) in cases where sasine would be prejudicial, e. g. where the vassal's heir, by infeftment on a precept of dare constat, would be subjected in his ancestor's debts. (2.) Precepts issuing from Chancery for ' the infeftment of heirs in lands holding of the Crown and Prince, form the only exceptions to the ordinary style of the precept of sasine. These are addressed to the Sheriff of the shire in which the lands are situated, as the Sovereign's baihe, for the reason that he is intrusted with the duty of taking secu- rity from the heirs for the amount of the casualties of non- entry and relief, payable by them on the renewal of the inves- titure (/t). ^Qe Entry of Heirs. Precepts of sasine in Crown charters are in a similar form ; but after the address to the SheriflF are added these words, " clilectis Jiostris " et vestrum cuilihet conjimctim et divisim vicecomitihus nostris *' in hac parte specialiter constitut." which have the same effect with the blank address in the ordinary form of the pre- cept, and authorise the actual holder of the deed, as Sheriff in that part, to infeft the vassal. 4. Effect of the precept as qualifying the conveyance. — The precept of sasine being the only clause which is trans- ferred as a quotation from the charter to the instrument of sasine (Z), a rule which inveterate practice has sanctioned, it thus becomes of equal importance to the superior as any other, even the dispositive clause, although apparently of use only for completing the title of the vassal ; for, by the present practice, it is unfortunately not imperative that this latter shall be trans- ferred entire to the sasine. The vassal will of course take care to express in that instrument the lands and subjects conveyed to him ; but it is plainly for the interest of a superior granting an original charter, or any other disponer, to repeat in the 99 c„":utu!,„ I C2. >.„BCErr or s.s.nc. | Sit;' precept of sasine the whole burdens and reservations with which it is the agreement of parties that the fee shall be affected. It is recommended in the Jur. Styles (m), to insert these in the precept, and merely refer to them in the other clauses of the deed, as contained in it ; but even assuming that a mere reference in the dispositive clause to the limita- tions expressed in the precept of sasine would effectually bur- den the conveyance, there is still no security that the reference there made would be transferred to the instrument of sasine. It is true, that an irritant and resolutive declaration is con- sidered in practice to be effectual for securing the insertion in the instrument of clauses which it is the interest of the supe- rior to have transferred to the register ; but it is manifest that the same difficulty applies to such a declaration, for unless it is continued in the chain of infeftments, it will not be binding on a singular successor. The proper remedy is by statute. The description of the lands need not be repeated in the pre- cept of sasine : it is enough to refer to the different parcels by their leading names, as contained in the dispositive clause, and to hold them as repeated, hrevitatis causa. 5. Symbols of possession. — The symbolical delivery of lands is not a native ceremony ; it was introduced with our forms of deeds. This ceremony prevailed in the middle ages in France, Germany and Italy, as is shewn by the Styles of those countries («). In the Forms of Marculfus, we find, that among the Franks the ordinary symbols for lands were lierha ef. terra, or herba et cespes ; oihonscs, ostium et a7iaticula ; of a vineyard, terra et vinea. The variety in the kinds of symbols was great. In the Formula; in usiim rcfjni Italici, in Canciani's Compilation (o), mention is made of the various symbols, such as a knife, a knotted stick, the branch of a tree, an inkstand, &c., employed by individuals belonging to the different nations composing the Lower Empire, — Romans, Franks, Goths, Germans, — who were in a certain degree governed by their own laws. These symbols represented the subject transferred where corporal delivery was impracticable ; while, in the tra- dition of houses, the seller walked out at the door, and left the premises unoccupied to the buyer, who entered and took actual possession of the subject. In either case, the will of G 2 100 Deeds of ) 02. PRECEPT OF SASINE. | ^^ISf Constitution. > t '^"•"i^^'- the disponer to divest himself of the property was evidenced by the delivery to the disponee, or his representative, of a rod or baton as the symbol of ownership. The symbols now in use in Scotland are, for lands and houses, earth and stone ; for mills, when conveyed as separate tenements, clap and happer ; for teinds, a handful of grass and corn ; for patron- ages, B. psalm hook and the keys of the church ; for the investi- ture of an heir in houses held by the tenure of burgage, hasp and staple ; for annualrents, a piece ofmone^j, and if prestable in victual, a handful of corn; for salmon-fishings, net and coble; for jurisdictions, the hook of the Court ; and for a right of ferry, an oar and some ivater. In practice, it is usual and safe to add, after the enumeration of the particular symbols applicable to the subjects conveyed, " and all other symbols " usual and requisite." (a) Moreover I hereby desire and require you and each of you my bailies in that part hereby specially constituted That on sight hereof ye pass to the ground of the said lands and others and there give and deliver to the said B. or his foresaids heritable state and sasine with real actual and corporal possession of all and whole the lands teinds and others particularly above specified with the perti- nents lying and described as aforesaid and here held as repeated brevitatis causa to be holden in manner foresaid and for payment of the feu (or blench) duties before specified and that by delivering to the said B. or his foresaids or to his or their attorney in his or their names bearers hereof of earth and stone of the ground of the said lands and a handful of grass and corn for the said teinds with all other symbols usual and necessary and this in no ways ye leave undone Which to do I commit to you and each of you my full power by this my pre- cept of sasine directed to you for that effect. (b) Craig, 2. 7. 2. (c) Erskine, App. 4. (). (a) In the Name of God, Amen. (6) Craig, 2. 7. 11. 68. The DATE (a) (1.) This clause is likewise borrowed from the Romans of the latter ages of the Empire, who pre- fixed to their instruments the year of the Emperor's reign, the name of the consul of the year, the indiction, and the month and day of the month (h) ; but in our earliest sasines it was usual to insert the year of our Lord, the indiction and the year of the Pontificate, without mention of the year of the Sovereign's reign (c). (2.) The date, properly so called, is necessary for fixing the time within which the instrument must be registered, and is to be considered among its essentials id) ; but the date, as inserted in its proper place in the instru- ment, is not falsified by an erroneous reference to it in a sub- sequent clause (e). (3.) The year of the reign serves to test the correctness of the date, and thus a discrepancy between the two might be fatal. (a) Know all men by tliis present public instrument, That upon the day of in the year of our Lord, and of the reign of her Majesty, Victoria the First, by the Grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, the first year. (6) Nov. 47. Pr. ct c. 1. § 1. (c) Ersk. App. 4. (rZ) Stair, 2. 3. 18; M'Queen, 23d Jan. 1824, F, C, 2 S. 637; Hoggan V. Smith, 13th Fob. 1835, F. C, 13 S. 461. (e) Gordon, 20th July 1773, B. S. 5. 587. 69. Appearance on the ground («) In the third clause are recorded the names and designations of the procurator or attorney for the vassal, and of the superior's bailie, and their appearance on the ground of the lands. Much care is required lOf) "-J^"'" J G9. AI'I'EAKANCK ON THE GROUND. VT^T Constitution. S ' "' '""•"^• in describing them. It is true that there are no proper verba solennia in the style of the instrument, and that the Court have disreo-arded objections which do not affect the identity of the baihe or attorney (h) ; but an error in a name or desig- nation may subject the deed to the uncertain result of a judi- cial inquiry. (a) In presence of mo notary-public, and of the witnesses herein after named and designed, and hereto with me subscribing, and upon the ground of the lands and others after described, (respectively and successively, if legally discontiguous,) Compeared personally D., as procurator and attorney for B., whose power of attorney was sufficiently known to me notary-public : As also compeared C, bailie in that part, specially constituted, by virtue of the precept of sasine here- in after transcribed, contained in the feu (or blench) charter after narrated. (/,) Morton, 10th Dec. 1828, F. C, 7 S. 122 ; affirmed 4 W. S. .379. The Christian name of the bailie was omitted ; a proof was allowed, and his identity established. 70. Narrative of the warrant (a) — (1.) The fourth clause of the instrument narrates the warrant on which the ceremony proceeds; and if sasine is given to an heir or assig- nee, the retour or assignation likewise must be described, or, as it is expressed in the statute (i), the title deduced in the instrument. (2.) It is necessary that writs which the attor- ney produces should be so described as to admit of complete identification, which is best secured by specifying their dates, and the names and designations of the grantors and disponees. An error or omission in the description of the warrant, although not necessarily fatal when other parts of the narrative supply what is wanting (c), may give rise to questions which the con- veyancer ought carefully to avoid by exactness of descrip- tion. (3.) The dispositive clause ought to be transferred en- tire to the instrument of sasine. (4.) A warrant subscribed by a person designed as commissioner for the granter is suffi- cient to authorise infeftment, although liable to objection at the instance of any party having interest, and it is not ne- cessary that the commission should be narrated in the instru- ment ( 74_ DKLIVERY OF SASINE. \ ^^g^"' Constitution. S ' °' Sasine. cases, all, it is to be noticed, of old dates, is proof of very slovenly practice, and tliat tlicy ought to be known to the conveyancer in order to be shunned, in place of being fol- lowed as precedents. 3. Conformihj with the precept (I.) This clause must be in accordance with the precept of sasinc, and conse- quently with the dispositive clause of the charter to which the precept has reference. Thus, it is incompetent to supply the names of disponees not expressed in the conveyance — such as representatives (/), or heirs and assignees (k). (2.) But to the rule which requires strict conformity with the war- rant, an exception is admitted where lands have been convey- ed as a barony or part of a barony (/), or even by such terms as all lands, Sfc. pertaining to the granter, ichcrever the same lie in this kingdom {m). In the one case, infeftment in each particular subject may be given on the evidence of former in- vestitures, and in the other, on production of the grantor's sasine. Where, however, the conveyance is not of all lands belonging to the granter, but partial, and the terms are am- biguous, the Court have pointed at a decree of declarator as the proper evidence to be laid before the notary (?t). (3.) It is unnecessary to repeat the description of the lands, which, indeed, is not usually contained in the precept. What is es- sential is to refer to the several parcels separately, but shortly, and to hold them as inserted, brevitatis causa. The omission of such reference, with respect to any of the parcels, will ex- clude them from the investiture (o). (4.) Where the precept differs from the dispositive clause, the former, as the imme- diate warrant of infeftment, is necessarily the rule. Thus, when the right conveyed is one of fee, but infeftment is war- ranted in liferent only, infeftment in terms of the precept car- ries a mere right of liferent (/>«). (5.) Sasine may be in dis- conformity to the warrant in expression, and yet correct in substance ; for as the greater includes the less, a precept may be validly executed as to part of the subjects contained in the charter, and infeftment on a precept warranting sasine in fee and liferent may be executed as to the liferent only {q). There is authority, likewise, for holding that a precept for in- feftment in fee will authorise sasine in trust, if assigned under no ")ood< of ) ^' I -„ t Instrument nstitut^on. \ '■^- DELIVERY OF SASINE. ) ^, g^^j^^ the burdens and conditions of a trust (?•) ; a doctrine which is by the same learned author extended to infeftment in any lesser right represented by the same symbols. But a precept for infeftment in trust, in liferent, or in security, will not authorise sasine in fee, although a precept in trust may be assigned so as to warrant sasine in fee ; at least it may be so assigned, if conceived in favour of assignees (s) free of the provisions and conditions of the trust. Nor does a precept in fee authorise infeftment in an annualrent (t), a rule which is not contradicted by the competency of executing a precept in fee in virtue of the judicial conveyance of adju- dication ; for adjudication, although a redeemable right, is capable of being made absolute, which does not hold in re- gard to securities by bond. 4. By ivhom and to ivhom given — (1.) It is essential to state, that sasine has been delivered by one person as for the superior, to another as for the vassal {u)-, and where this is substantially done, a blunder in expression, such as the trans- position of the names of the bailie and attorney {v) ; the delivery of state and sasine to the attorney in place of the party {id), the omission of one of two parties for whom the attorney truly ap- peared, as stated in a preceding clause [x) ; or a mistake in re- peating the name of the attorney (y), have been adjudged not to be fatal. These cases are obviously, however, to be shunned as rules of practice. (2.) Terms used in reference to the sub- jects conveyed, such as materially to limit the right, v/ill, al- though manifestly erroneous, be read as they stand. Thus, the words, in dimidietate tertice partis, in place of trium jjar- tium, were interpreted to mean the half of a third, and not the half of three parts (.r). (3.) As infeftment can, from its nature, be given to those only who have an immediate or de prcesenti right, sasine in favour of a party named, whom failing, to another, is ineffectual as to the latter ; but the in- sertion of his name does not hurt the instrument as the title of the disponee first named ; nor do the quaUfying words, such of the said trustees (if before named) as shall accept, so aff'ect the identity of the disponees as to annul the sasine (««}. A fortiori is infeftment to A. B. and the other partners of a company, a valid investiture to the person expressed {l>h). Ill Dcckof ) 74. DELIVERY OF SASINE. anHtrument Constitution. S t o« basine. 5. Deliver^/ symbolical The symbols customary in giving hifeftmcnt have been already stated; (above, §62, Art. 5.) The delivery of symbols is not a statutory ceremony ; and it has been seen that the omission to notice them in the instrument has, in particular circumstances, been disregarded, (Art. 2.) ; but it is plainly the duty of the conveyancer to follow the prac- tice. In competitions of heritable rights, the Court look nar- rowly to the observance of practical forms. It is prudent, after mentioning what appear to be the proper symbols, to add, and all other symbols usual and necessary. A saving clause of this import, after the mention of the leading symbols of earth and stone, would probably be held to supply any acci- cidental omissions. (a) After rkading and tublishing of which feu (or blench) charter, con- taining the said precept of sasine, the said bailie received the same again info his liands, and by virtue thereof, and of the office of bailiary tliercby committed to him, GAVE AND DELIVERED to the said B. heritable state and sasine, real, actual and corporal possession of All and Whole the lauds and others particularly befoi'e specified, with their pertinents, lying and described as aforesaid, and here held as repeated, hrevitatis causa. (b) Davidson, 14fh Nov. 1827, F. C, 6 S. 8. (c) M. of Clydesdale, Jan. 1729, M. 14,312; Pringle, 20th Jan. 1725, M. 14,312. Here the delivery bore, however, to be in terms of the precept, which mentioned a penny inonet/. (d) La. Smeiton, ITith March 1631, M. 14,320. (e) Somervil, 23d March 1631, M. 14,320; Urquhart, 28th July 1753, M. 9915-21, affirmed on appeal. This case was a competition of real rights. The sasine was of a right of patronage, and the clause horc, juris solcmnitatibus con- suetis debite observuiis. (/) Maxwell, 21st March 1628, INI. 14,318. Doubts have, however, been expressed in a recent case, (M'Intosh, 17th Dec. 1825, F. C.) of the grounds of decision. (<7) Lammcrton, Jan. 1682, M. 14,321. (A) E. of Wigton, 17th Juno 1630, M. 14,320. (i) Blackwood, 7th Nov. 1740, M. 6902, 14,327. (/;) Melville, 14th Feb. 1794, M, 14,327. (/) Hill, 10th July 1833, 11 S. 958. (»i) Graham's Creditors, 3d August 1753, M. 49. Sec York Buildings' Com- pany, 9th Jan. 1739, Elch. voce Service and Confirm. 8. (n) Stewart, 21st Jan. 1815, F. C. See "Wallace, 23d June 1742, M. 6919. (o) M'Leod, 18tb Feb. 1768, M. 8793. Ip) Graham's Children, 4th July 1759, M. 6931. (<7) Ersk. 2. 3. 48. Sec Graham's Children, as above ; Falconer, 20fh Jan. 1825, F, C, 3 S. 455 ; Dundas, 23d Jan. 1823, 2 S. 145. (r) Bell's Princ, 877 ; 1 Bell's Com. 697, notes 2. and 3 ; More, 29th ]May 1805, referred to. 112 T)i'0(U nf ) w I ^ Instrument ConstUutSon. \ 74. DELIVERY OF SASINE. ) ^, g,,,,, (s) Bell's Princ. 877 ; Cameron v. Cockburn, 4tli Juno 1836, F. C, M D. 889. (t) Mitchell, 16tli July 1767, M. 14,335 ; Ilailos, 1. 185. (w) Stair, 2. 11. 11. («•) Henderson, 8th March 1776, B. S. 5. 58G ; Morton, 10th Dee. 1828, F. C, 7 S. 172 ; affirmed, 4 W. S. 379. (w) M'Ghie, 5th June 1827, 5 S. 738. (.r) Douglas, 3d March 1762, B. S. 5. 587. (y) Livingston, 3d March, 20th July 1762, B. S. 5. 587, 888 ; affirmed on appeal. (z) Murray, 27th Feb. 1708, B. S. 4. 701. (aa) Paul, 21st Jan. 1833, F. C, 11 S. 292. (W) Dennistoun and Company, 16th Feb. 1808, M. App. Tuc/t, 15. 75. Taking instruments (a) — The asking of instru- ments was formerly deemed {b) necessary in order to retain the notary by a payment in part. It is now a mere form. (a) "Whekeupon, and upon all and sundry the premises, the said procura- tor and attorney asked and took instruments in the hands of me, notary-public, subscribing. (t) Ross, 2. 186. 76. Summary of the res gest^ (a) — 1. Discontiguity. In the tenth clause, it is essential to state that the cere- mony was performed — these things were so done — upon the ground, or in respect of each and every subject contained in the charter, which, by reason of discontiguity^ or being in \t- seU a separate tenement, requires distinct infeftment. This is done by using the words, respectively and successively each after other, or equivalent terms, with reference to the subjects de- scribed in a former clause of the instrument. The question, therefore, is important, in what discontiguity and legal sepa- ration consist. (1.) It is a rule of the feudal law that every fee must have a separate investiture, without regard to situa- tion (i) ; whence it follows that subjects lying together, granted originally by the same superior, to be holden by the same tenure but on different titles, being legally disjoined, require distinct infeftment in the person not only of a purchaser from the vassals, but of the disponee of such purchaser acquiring the separate subjects by one conveyance (c). (2.) Where subjects, again, are locally disjoined, the nature of the cere- mony of infeftment implies that possession cannot be given 113 J.:tttLn. ( '^- S^'^'^IAUY or RES GEST.l.. } ^, ,^,.,. of one subject upon the ground of another ; whence arises the necessity for separate sasine of each separate subject. (3.) Where, however, the subject conveyed, aUhouirli legally sepa- rate from lands, is still naturally connected with them or their fruits, such as salmon-fishings, teinds, or a right of patron- age, sasine need not be distinct, but the symbols only. 2. U7iion (1.) The Crown, as paramount superior, and thus in one sense proprietor of the whole lands in the kingdom, has the inherent power of authorising infeftment in a single subject for any number of separate tenements, and by delivery of the symbols of earth and stone for the whole. This power is exercised by means of the legal union of the several tenements. The form was originally by erection into a barony, a clause of union in a Crown charter, or a charter containing a confirmation of similar powers conferred by a subject-superior, to whom, of his own right, the privilege does not belong, although Craig expresses a contrary opinion (^Z). But he may transmit the privilege already conferred on him- self, in granting a subaltern right of the same lands, provided he shall convey them entire (e). (2.) The mere erection into a barony, although of old conferring valuable privileges, did not, however, create a union of lands lying discontiguous for the purpose of infeftment, unless a particular place were ap- pointed for the performance of the ceremony as for the whole (/) ; but when a place was expressly named for that purpose, although lying in a different shire from other parts of the estate, sasine given there was sufficient for the whole lands ((/). (3.) It is probable that the modern clause of union and dispensation was framed to meet the defect above noticed (h). The clause is not personal to the Crown vas- sal obtaining the privilege, but is available to a disponee, even of a portion of the lands, whose infeftment shall proceed upon the precept in the Crown charter by virtue of an assignation, and that although the clause of union do not contain the words, vel (juavis earmidenijmrtc (J). This seems, indeed, a necessary result, unless it were held that the alienation of apart dissolved the union ; for where sasine may be given on any part of the lands, the dispensation must apply to the whole or to none. But the opinion of our older writers was in favour of the no- 11 114 TtonrU rtf 1 >-^ . (Instrument Con:ttt?on. } 7G. SUMMARY OF RES GEST.E. { ,f s,,.„,. tioii, that the union was dissolved as regarded the parts alie- nated. It is still usual to name a place (such as the man- sion-house,) at which, as well as upon any part of the lands, sasine may be given ; and it is not a good objection to an in- strument of sasine, bearing that sasine was given at the place so appointed, bt/ deliver?/ of earth and stone of the lands dis- poned, that such place is not upon the ground of the lands contained in the warrant of infeftment {k). 3. Distinction betioeen sasine as a ceremony and as an in- strument (1.) The practical result of the observations con- tained in the two last articles seems to be, that where there is no union by the Crown, infeftment must be given separately in lands and other feudal subjects which are separated by dis- contiguity, by distinct tenures, by holding of different supe- riors, or of the same superior by different charters although possessing the superiority as an undivided fee. (2.) But it is unnecessary to repeat the ceremony in respect of such rights as salmon-fishings or teinds, unless where they are uncon- nected with the lands contained in the conveyance, although symbols must be used appropriate to all rights in which sasine is required. The same rule applies to patronages, when once annexed to and conveyed with lands in a disposition followed vv'ith infeftment (/). (3.) A distinction is to be ob- served between sasine or infeftment, and the instrument of sasine. Although the ceremony must in point of form be re- peated on each legally distinct portion of lands, one instrument only is required on each warrant. There seems, indeed, to be no incompatibility in including infeftments on several war- rants in the same instrument, provided the proper stamp-duty be i)aid (?n) ; but practice has not gone so far. 4. Time of giving sasine It is observed by Lord Stair, in treating of the formalities of an instrument of sasine, that it must bear the hour of the day at which infeftment was given [n). Before the establishment of the registers, the sasine lirsit in point of time was necessarily preferred, and the hour might thus be of importance. Even after that period, but prior to the act of 1693 (o), questions seem occasionally to have occurred, and the preference to have been regulated by priority in the hour [p). At the present day, the question is of no practical importance {q) ; but it has been doubted 115 ,^'f;!!^ \ 70. SUMMARY OF UES GESTAE. \ Yj""*"" Constitution. ) (of basine. if infeftmcnt is valid taken before sunrise or after sunset, or, as it is expressed, wider cloud ofnirjJtt. In an early case the objection was repelled, for the reasons that the ceremony is of a private nature, and that no fraud or latency was proved by the objector (r) ; and a similar determination took place in a later instance {s). But from an opinion more recently ex- pressed, that the hour is of no moment provided that sasine be given in the day time, it would appear that the point is not yet settled {^). In such circumstances, the safe course for the conveyancer and notary is to follow the view thus indicated by the Court. So long as infeftment remains an actus leyiti- mus, it would be to deprive it of all pretensions to solemnity or authenticity, to perform the ceremony at an hour when the witnesses could with difficulty observe the procedure, and the notary would be unable to publish the warrant by read- ing it. 5. Names arid designations of the xcitnesses. — The wit- nesses must be inserted according to rules elsewhere explain- ed; (above, § 14. 6.) They are called to witness and attest the facts, and not the subscription of the notary. (a) These things afeke so done upon the ground of the said lands and others (respectively and successively ifhgalhj discontiguous) betwixt the liours of and of the day of the month in the year of our Lord and of the Queen's reign respectively above written before and in presence of E. and F. witnesses to the premises specially called and required and hereto with me subscribing. (6) Ersk. 2. 3. 44. (c) B. of Scotland, July 1729, M. 16,404. (of) Craig, 2. 7. 17. 18; Mack. 2. 3. 20; Stair, 2. 3. 44; Ersk. 2. 3. 4(J ; Aitken, 16th Jan. 1623, M. 16,397 ; La. Borthwick, 16th Dec. 1628, M. 16,399, and Jan. J 638, M. 16,401. (e) Stair, 2. 3. 44, par. 2; Stewart, 2ath Jan. 1627, M. 6623; Blaquhan, 7th July 1637, M. 16,401. (/) Stair, last cit. ; L. Clackmannan, 16thNov. 1630, M. 16,399 ; L. of Lau- riston, 19th March 1636, M. 14,330; La. Ediiem, 23d July 1628, ISI. 16,398. Erskine, 2. 3. 45, maintains that union implies the suiliciency of infeftmcnt on any part, even where a particular place is not mentioned, as for the whole lands, and this seems to be the proper interpretation of a clause of union. But his opinion appears to differ from that of Stair as well as from the decided cases. It is probable that the doctrine established by these last was the cause of the express provision in the modern clauses of union and dispensation, tiiat sasine taken on any part of the lands should be sullicient for the whole or any particular portion of them . (p) Faa, 12th June 1673, M. 16,403. H 2 IIG "DpniU of ) >-/■ „ nr. C Instrument Dectbot / 70. SUMMARY OF RES GEST^. ] of Sasinc Constitution. ) i "' oasinc. (/() PoKKO nos volumus et concedimus et pro nobis no?trisq. rogiis successo- ribus dcccrninius et ordinamus quod ulla sasina seu sasinoD nunc et in omni tempore future per diet. A. vel ejus pracdict. suscipiend. apud mansionis do- nium de C. vel super fundum ullius partis seu portionis terrarum aliorumque antca disposit. per traditionem tcrrce et lapidis fundi earundem solummodo sine necessitate ullius alii symboli est et erit tam valida et efficicns sasina pro diet, intcgris terris decimis aliisque antea disposit. seu pro ulla parte vel poi'tione earundem quasi particularis sasina super unamquamque partem et portionem earundem et per traditionem omnium consuetorum symbolorum suscepta fuisset non obstan. separata sint tenementa diversarum denominationum jaceant discon- tigue et separatas sasinas et diversa symbola requireront. ((") Skene, IGtlTJan. 1768, M. 8792, as reversed 1768; Montgomery, 2d March 1813, F. C. ; Heron, 14th Feb. 1771, M. 8684. (k) Dcnnistoun, 7th July 1824, F. C, 3 S. 218. (Z) Ersk. 2. 3. 44; Urquhart, 27th June 1752, M. 9915 (to) Mackintosh, 12th May 1831, 9 S. 683. (n) Stair, 2. 3. 17. (o) 1693, c. 13. (p) E. of Home, 29th July 1627, B. S. 1. 237. (//) Bell's Conv. of Land, p. 214-15. ()•) Arnot, 19th Nov. 1679, M. 14,332. (s) Douglas V. Elphinstone, 1768, noticed in Bell's Conv. of Land, p. 215. (t) Dcnnistoun, 14th Xov. 1824, F. C, 3 S. 285. 77. Notary's doquet (a) 1. Office of notary The orio-in of the office of notary is matter more of curious than useful inquiry. Craig {h) informs us that our notaries cor- respond to the tahelUones of the Romans, in whom, as appears from the 73d Novel of Justinian, great trust was reposed in the preparation and authentication of writs. In that age the imitation for fraudulent purposes of true documents, {nihil aliud fahitas nisi veritatis imitatio,) had become a study, and called for an express law to repress it, from which it is pro- bable that our system of authentication is derived (c). The tahelUones (or Registrars) of the Romans were by that edict intrusted with the preparation and authentication of writs (c?), which were at first made out under judicial authority. After- wards the forms were gone through in private, and the officer to whom they were intrusted received the name of Notarius, quod notas ex loquentiiim sermonihus et dictatis exciperet, quas jwstea in jjuhlicam formam redigehat et extendehat {e). It is observed by Craig (/), that as the employment of notaries arose out of the forgery of private writings, so from the crimes of notaries, confidence in these returned, — a severe commen- Constitution. \ /of Sasine. ir 77. DOQUET. j^j;.''^^' tary on the vices of the clerical notaries. Notaries were at an early period a])pointed by the Emperor or Pope, and thence called imperial or apostolical. They now derive their authority from the Sovereign, through the medium of the Supreme Court. 2. Privilefjes of notaries. — The privileges of notaries extend over the whole kingdom, under certain inconsiderable exceptions. (I.) Sasines passing upon precepts issued from the Queen's Chancery for the infeftment of heirs can be taken and authenticated only by the sheriff-clerks of the counties where the lands lie respectively, or their deputes, the Sheriff officiating as the Sovereign's bailie (^). (2.) In burgage sub- jects, an exclusive privilege of the same description belongs to the town or common clerk (/(). (3.) The sheriff-clerks of counties, and the town-clerks of burghs, must necessarily be notaries, to be enabled to authenticate the instruments pro- ceeding upon warrants executed by them. (4.) When it hap- pens that the town-clerk of a burgh is proprietor of subjects within the burgh, the court will authorise the sheriff-clerk to officiate for him in giving sasine in such property (/). See Bnrgagc Jlif/hts. In a similar situation, the shcriff-clerk-de- pute in practice officiates for his principal. (5.) Notaries, as public officers, may be compelled to serve the lieges in their office on tender of the legal fees [k). (6.) They do not appear to be disqualified by reason of relationship, but by interest only, although it has been doubted if a notary can officiate in virtue of a warrant contained in his own deed {!). 3. Notanjs iwotocol. — At a former period, notaries kept a record book, called a j^rotocol, in which they entered, with more or less regularity, the instruments of importance prepared by them, such as instruments of sasine and of resig- nation. It was occasionally of benefit to their employers, so long as the notary as well as the witnesses to an instrument were alive, as a duplicate made out from the co})y entered in the protocol, and attested by the notary and witnesses, was received as equivalent to the original instrument {m). The protocol is now practically neglected, although a book bear- ing that name is still issued to each notary on his admission. 4. Terms of the dotpiet — The certificate or doquct, (an 118 "DecJ-; of ) »-» ( Instrument Constitution.} "' COQUET. { of Sasine. old English term for a brief or summary of a longer writing,) adhibited by the notary in attestation of the facts contained in the instrument, is of very ancient date, the form of the doquet in the instrument of sasine given in the Appendix to Mr Erskine's larger work (n) being almost verbatim the same as that now in use. (1.) The doquet is in the handwriting of the notary, and consists, in so far as respects the ceremony, substantially of a statement by that officer that he was pre- sent with the witnesses, and saw, heard and was cognisant of the facts narrated in the instrument, and had framed and sub- scribed it in testimony of their truth. Accordingly, when the doquet bears not the personal presence of the notary, the sasine is invalid (o) ; and the omission of the w^ords, vidi, scivi et audivi, have been held fatal to the instrument (p). (2.) But as mala cjrammatica non vitiat chartam, — bad grammar does not vitiate a writ, a mere error in syntax is disregarded ; as are likewise blunders in spelling and omissions' of words, pro- vided the substantial facts are expressed {q). It is a matter of much difficulty, however, to particularise what are to be considered the essential parts of the doquet (f) ; and it is the duty of the notary, so long as the present mode of authenticating instruments of sasine is allowed to exist, to copy the doquet word for word either from his commission or the style-book. (3.) Craig asserts that the omission of the concluding words, rogatus et requisitus, vitiates the instrument, because a notary can do no official act unless called on to perform it, and re- quisition, he states, will not be presumed except in regard to the witnesses (.?). Later writers do not instance these words as essential. (a) See above, page 30. (Jb) Craig, 2. 7. 7. (c) Nov. 73. Pr. Id) Stair, 2. 3. 19. (e) Craig, as above. (/) Craig, as above. (J) 1606, c. 15. (A) 1567, c. 27. (i) Duff, ICth Jan. 1823, 2 S. 117. (Ji) Inncs, 29th Feb. 1612, M. 13,089 (/) See above, § 11 ; Sim, 2<1 Dec. 183), 10 S. 85. IH) Deeds of J 77_ DOQUET. j rnstrument Couslilutioii. ) (of Sdsiiie. (m) Kamsay, 2d Jan. 1G78, M. l.l.joS; Liiidorcs, 12lh June 17u«, B. S. 4. 648. (n) Erskine, App. 4. (o) Macintosh, 17th Nov. 1825, F. C, 4 S. 190. (p) Primrose, 22d Dec. 1612, M. 14,.326. Iq) M'lntosL, as above ; M'Ghie, 5th June 1827, 5 .S. 758. (r) Sec opinion of Lord Alloway, in Macintosh, above. («) Craig, 2. 7. 21. TITLE IV. REGISTRATION OF THE SASINE. 78. Origin of the system In tlic constitution and transmission of land rights, there are three parties who have an interest, the superior or granter, the vassal or disponee, and the public. The two first are bound by the terms of the grant ; but to make its conditions obligatory on third parties contracting with either, they must be published in the manner prescribed by law. At a remote period, the grant was made or renewed in presence of the pares curice, who at that time formed a body perhaps sufficiently numerous for all the purposes of publicity. In the course of ages when agriculture had improved, and wealth and population become more abun- dant, the mode of investiture, in place of assuming a form adapted to the change, acquired a more private character ; and the giving of sasine was evidenced at first by the certifi- cate of the superior's bailie, and afterwards by means of the instrument of sasine. Although a considerable number of per- sons appear occasionally to have been present, the ceremony of infeftment could, in the general case, furnish no adequate information to the public, even in the district where it was performed. Nor was the evil diminished by means of the protocols issued to the notaries, in which it was their duty to insert all instruments of importance. They do not appear to have been under any effectual superintendence (a), and those sasines which they chose to transcribe were useful not to the public, but to their own employers, who were thus enabled, on the loss of the principal instrument, to obtain an authentic duplicate of it. It was thus out of the power of creditors or purchasers to discover what real burdens attached to lands. The first dawn of a better system appears in a statute {/)), which permitted the registration of rights of reversion granted 120 Deeds of I 70 ,,„w.,^ (Registration Constitution.! '^' ""^^l^' ^ of Sasinc. by wadsetters, for preservation, in the King's register. This was followed up by certain provisions contained in regulations made for the collection of the Crown revenue. By an act passed in 1503 (c), Sheriffs of counties who gave sasine to vas- sals of the Crown were appointed to write in their court-books the dates of the sasines passing on Crown precepts, and bring the same to Exchequer ; and by a statute of James V. the duty was imposed on the sheriff-clerks, of bringing yearly to Exchequer the books containing the sasines given by the She- riffs. The register thus instituted was consequently of sasines on precepts from Chancery alone ; and another act passed in the reign of Queen Mary (e), ordaining all persons within year and day to produce their sasines to the sheriff-clerks of the respective counties where their lands lay, in order that the day and month, the name of the lands, and the names of the notary and witnesses might be inserted in their court- books ; and each clerk was appointed to bring his books to Exchequer, and leave a duplicate of such part as related to sasines, " subscribed with his hand and sign-manual," to re- main in the register with a duplicate of his own protocol, that all persons having interest might have recourse thereto. These acts were nearly inoperative, and the last appears to have fallen into almost total neglect (/). Although the statute of James V. was renewed in 1587 ([/), the regulations thus in- troduced obtained no permanent footing, and those notes or abbreviates even which were registered gave no satisfactory information, as they did not bear the burdens and conditions with which the right might be clogged. Acts were therefore passed (/*), which provided that the full tenor of sasines, and of several other real rights, should be registered within forty days after their dates, in the register of the Secretary of State, under the sanction of nullity. These statutes appear to have been but imperfectly obeyed. The last in date is referred to in an Act of Sederunt, dated in 1G04, which repeated a great part of its provisions, but, as it would appear, to little purpose. At length was enacted that important statute (i), which forms the groundwork of our admirable system of registration of land risrhts. 121 ,,»'^^:'''^?f I 78. ORIGIN. j Repistratioa Constitution, i i of basine. (a) Ersk. 3. 2. 39 ; Ross, 2. 202-3, (ft) 1469, c. 27. (c) 1503, c. 89. (rf) 1540, c. 79. (e) 1555, c. 46. (/) Ross, 2. 205. (ff) 1587, c. 64. (it) July 1599, Nov. 1600, unprintod. ■ (i) 1617, c. 16. Ourc Sovcrainc Lord considering the great hurt sustained by his Majesties iicgis by the fraudulent dealing of parties who haveing annal- licd their lands and received great sunies of money therefor, yet be their unjust concealing of sum privat Eight formerlie made by them rendereth subseciuent alienation done for great sumes of money altogether unprofitable which cannot be avoided unless the saidis privat Rights be made public and patent to his lligh- nes' Liegis : For remedy whereof and of the many inconveniences which may ensue thereupon his Majestic with advice and consent of the Estates of Parlia- ment STATUTES and oUDAiNS that there shall be ane public Register in the which all Reversions Regresses Bands and writs for making of Reversions or Regresses assignations thereto discharges of the same Renunciations of Wadsets and grants of Redemption and sicklikc all Instruments of seasing, shall be registrat within three- score days after the date of the same : It is always declared that it shall not be necessary to registrat any IJandis and writtis for making of Reversions or Re- gresses unless seasing pas in favours of the parties makers of the saidis Bandis or writtis. In the which case it is ordained that the samcn shall be registrat within threescore days after the date of the seasing. The extract of the which Regis- ter shall mak faith in all cases except where the writtis so registratcd aro offered to be improven. And gif it shall happin any of the saidis writtis which are appointed to be registrat as said is not to be dewly registrat within the said space of threescore dayes then and in that case his INIajcstie with advice and consent foresaid decernes the same to mak no faith in judgment by way of action or exception in prejudice of a third partie who hath acquired ane per- fect and lawful right to the saidis larulis and heritages but prejudice alwayes to thame to use the saidis writtis against the partie maker thereof, his heires and successours. It is alwayes declared that this present Act shall no wayes bo extended to Instruments of seasing and Reversions therein contained given by Provost and Bailies of free Burghs-royal of lands lying within their Liberties and Freedomes balden by the saidis Burghs in free burgage of his ^lajestie nor tona other heritable writtis thereof, nor yet to Reversions incorporat in the body of the Iiifeftmcntis maid to the persons against whom the said Reversiones are usit : It is also declared that gif any Renunciationes or Grantis of redemption which shall happen to be consignit in processe betwix parties shall be registrat within threescore dayes after the dates of the decreets whereby the same shall be or- dained to be given up to the pairties having right thereto, the same shall be suffi- cient. And to the effect the said Register may presently and in all time cuming be the more faithfully keepit Therefore our said Sovereign Lord with advice and consent foresaid statutes and ohdanis the same Registers and registrations foresaid to be insert therein to appertain and belong to the present clerk of register and his deputtis to be Jippointed by him to that effect and decerns and ordains the same Registers to be annexed and incorporated with the said office 122 ) >- o { llegistra And that the Clerk of Register present and to cum have the said office as ane pro- per part and pertinent of the Clerk of Register his office niak and constitute par- ticular deputes ane or ma for all the dayes of their lifetimes or otherwayes as he shall think expedient of good fame literature and convei-sation for whom he shall be answerable and who shall be resident within the tonnes and places after specified at all times to receive fra the parties their evidcnts and to registrat the same within the space of fortie-aucht houres next after the receipt thereof and to ingrose the haill bodie of the write in the Register under the pain of deprivation of the Clerk of his place and service and of the office of Notarie in all time thereafter. And within the same space shall deliver to the presenters of the samine the evi- dcntis niarkit by him with the day moneth and year of the registration and in what leaiT of the book the same is registrat and sliall take allenarly for his paynis 26s. 8d. money of this Realme as for the price of ilk leafe of his Register con- taining no les than in this present Act, and in case the leafe contain les to take les accordingly and so proportionallie for every page of the leafe and part of the paige, and according thereto shall take for registring of every ane of the said e'lddents. And the saidis Registeris to be filled by the saidis deputtis to be marked by the Clerk of tlie Register and his deputtis to be appointed by him to that effect with an note of the particular number of the leiffis that the same shall con- taine and the saidis Registeris after the filling up of the same to be reported to the said Clerk of Register to remain with him and his deputes and be patent to all our Soveraine Lordis Liegis and extracts thereof to be given by him and his deputtis to be appointed by him during all the dayes of their lifetime or other- wayes as he shall think expedient for that effect to all shall have adoe with the same which shall mak as great faith as the principallis except in case of impro- bation. And the saidis Registers for the greater case of the Liegis to be esta- blished in the princip 1 places following viz. (places inserted) or any other place or places more convenient as the Clerk of Register shall think most expedient dew intimation being made to the Liegis of the same. And the saidis evidentis to be registrat in the particular books appointed for the lands within the bounds of ilk Sheriffdome Stewartrie and Bailzeric as said is or in the option of the party in the books of Register or Session keiped by the said Clerk Register himself or liis deputtis to be appointed by him during all the dayis of their lifetime or other- wayes as he shall think expedient to that effect in Edinburgh and our said So- veraine Lord with advice and consent of the Estates decerns and declares this present Act to have the force strength and effect of ane Decreit and Statute of Parliament which shall have force strenth execution according to the teunoure tliereof in all tyme to cum. Ordaining publication to be made of the same in forme as effeiris. 79. Registration acts — 1. Act of 1617 («) — The pre- amble of the statute narrates the " fraudulent dealing of parties, " who having annailzied their lands, and received great sums " of money therefor, yet by their unjust concealing of some " private right, formerly made by them, rendereth subsequent " alienation dune for great suras of money altogether unprofit- " able, which cannot be avoided unless the said private rights 123 wccdb, oi ( ,j iiiiciSTIlATlON ACTS. ] „f «,.;..„ Constitution. S * "' feasinc. " be made public and patent." It ordains that there shall be a register in which all reversions, regresses, bonds for making the same, assignations and discharges thereof, renunciations of wad- sets, grants of redemption and instruments of sasine, shall be inserted within sixty days after their dates. The register is placed under the direction of the Clerk Register and his deputes. The kingdom is divided into districts, and a special, or as it is called, a Particular Register^ appointed to be kept in each district, in which, or in the General Rerjister Q's,ia\iY\^\\cA at P]dinburgh, the rights must be recorded. Where the lands lie wholly in one district, the right may be registered in the reo-ister of the district ; and where hi more than one, in the Particular Registers of the several districts. In either case it may enter the General Register at Edinburgh. The keeper of each register is appointed to record the deeds within forty- eight hours after receiving them, and to engross the ichole body of the writ in the register, under the pain of deprivation ; and, within the same space, to redeliver to each presenter the deed presented by him, marked with the day,, month and year of the registration, and in what leaf of the book it is re- gistered. The books of record, before being issued to the keepers, are to be marked in a particular manner by the Re- gister or his deputes ; and after they are filled up, to be re- turned to them, to remain in their keeping for public in- spection. Extracts from the register are declared to be pro- bative, except in improbations. Sasines not thus registered are to make no faith in judgment by way of action or excep- tion, in prejudice of a third party who has acquired a " per- " feet and lawful right" to the lands and heritages contained in them, without prejudice, however, to those in whose favour they are conceived to use the writs expressed in the act, " against the party maker thereof, his heirs and successors." 2. Acts of 1696, cS-c (1.) By the law and practice prior to the statute of 1617, the date of the instrument was the rule of preference ; due registration thenceforward became necessary to support the right in questions with third parties, and thus a registered sasine is preferable to a prior sasine un- registered. Doubts were, however, entertained, although the point docs not ap})ear to have been judicially discussed. 124 Dceclsof ) 79. REGISTRATION ACTS. | RegUradon Constitution. ) ( ot basinc. if, when two instruments, both affecting the same subject, were registered within the sixty days, that first registered, if last in date, ought to be preferred to the other (b). These doubts were removed by a statute (c), which, as deeds unregistered continue latent in regard to the public, de- clares that the sasine first registered, although posterior in date, shall be preferable to the prior deed. (2.) Another defect consisted in this, that the statute prescribed no cer- tain means for the transcription or booking of the sasines left with the keepers, in the order of their presentation. From the great number of the deeds presented for regis- tration, it became impracticable to obey the provision, that the keeper should engross the whole body of the writ in the register and return it to the presenter within forty-eight hours after receiving it. The one requisite or the other was often neglected. Sometimes deeds were returned with an attestation in terms of the act, without having been booked ; but more frequently they remained in the custody of the keeper for a long period (cf) ; and he had thus the means, if he felt the desire, of preferring one party to another To remedy the latter of these evils, the keepers were appointed (e) to make exact minute-books relating to the register, " contain- " ing the names and designations of the parties, and the com- " mon designation of the lordship, barony or tenandry of the " several lands mentioned in the writ," which were to be com- pared with the register, and subscribed by the Clerk-Register, or persons appointed by him, every quarter of a year. These minute-books had a tendency, however, to increase the evil, for the keepers were thus enabled to return sasines to the pre- senters unbooked, but with the usual certificate of registration, at the same time that they retained a memorandum of the writ, which probably, in most instances, answered the purpose of a search of the register; and so prevalent was the omission to enter the full tenor of the sasine in the register, that, out of sympathy for individuals, an act was passed, strongly disa])provcd of by Stair, which, in effect, legalised the neglect of the keepers (/"). This act was in force until the year 1696, when it was declared by statute (y), that no sasine or other real right, appointed to be registered by the act of 1617, should be of force unless 125 •DocJsof j 79. REGISTRATION ACTS. 5 "TsS'" Constitution. S t °' bahinc. booked and inserted in the register. (3.) In the meantime, tlie minute-book had been l)rouji:ht into form by another im- portant statute (Ji\ which provides that the minute-books shall express the day and hour when, and the names and designations of the persons by whom the writs shall be pre- sented; and that each minute shall be immediately signed by the presenter of the writ, and also by the keeper ; and that the writs shall be registered exactly in the order of the mi- nute-book. (4.) Burgage sasines, which were excepted in the act of lol7, were brought within its scope by a statute passed in 1681 (/) ; but it is provided that the burgh registers shall be kept by the town-clerks, and depend on their own magistrates, and not on the Clerk-Register, by whom or by his deputes the books are, however, marked and issued to the town clerks. The General and Particular Registers, properly so called, are not only marked by that officer or his deputes, but likewise kept under his charge in the Great Register Office at Edinburgh, after being filled up and returned by the seve- ral keepers (/t). The appointment of the keepers belongs to the Crown. (a) Above, p. 120. (6) Ersk. 2. 3. 42. (c) 1693, c. 13. Our Sovereignc Lord and Lady the King and Queens Ma- jesties, for the better clearing and determining of competitions and preferences of real Rights and Infeftments do hereby with the advice and consent of the Estates of Parliament enact statute and deci-are that all infeftments whe- ther of property or annualrcnt, or other real rights, whereupon sasines for hereafter shall be taken, shall in all competitions be preferable and preferred, according to the date and priority of the registrations of the sasines, without respect to the distinction of base and publick Infeftments, or of being clad with possession, or not clad with possession in all time coming. (d) Ross, 2. 211. (e) 1672, c. 16, § 32. See A. S. 15th July 1602. (/) 1686, c. 19. See Stair, 2. 3. 22; 4. 35. 22. (p) 1696, c. 18. Ocn Sovereign Lord considering that unless scasins and other writs and diligences appointed to be registrat be booked and insert in the respective registers appointed for that effect the Liedges cannot be certiorat thereof which is the great use and design of their registration Doth therefor? with advice and consent of the Estates of Parliament statute and declare that no seasine or other writ or diligence appointed to be registrat shall be of any force or effect against any but the granters and their heirs unless it be duly booked and insert in the register And that notwithstanding of any thing contrary here- to contained in the 19th act second session first Parliament of King James VII. 120 T»„„,ii nf ■) fc,^ C Registration "'""^.''^ °* [ 79. REGISTRATION ACTS. ] of Sasine Constitution. S ^ ^ aasine. which is hereby in so far rescinded cassed and annulled and declared to have no effect in time coming But prejudice always to such as have rcgistrat their seasins and other writs and diligences conform to the said Act before the making hereof. And his Majestic with advice foresaid ratifies and approves of the haill other heads and articles of the said Act and declares that parties Icsod by the omission or negligence of clerks to book and insert in the Register such writs as arc presented to them and which they attest on the back to be rcgistrat shall have action of damnadge against the heirs and representatives of the saids clerks though no such actions be commenced in the clerk's lifetime. '(/i) 1693, c. 14. Our Soveraigne Lord and Lady the King and Queens Majesties consideking that the many good acts appointing registers of sasines, reversions, hornings, inhil)itions, interdictions, allowances of f^i^prisings or adju- dications, that purchasers and creditors might know with whom they might safely contract have been much frustrated by the Keepers of the Registers not inserting the same in the Registers at the time, and in the order they were presented to them, whereby none could know by inspection of the Registers, what writs appointed to be registrate were in the hands of the Keepers of the Registers, and thereby could not securely bargain. For remeid whereof their Majesties with advice and consent of the Estates of Parliament doe statute and OKDAiN that all the keepers of the said Registers, shall keep minute- books of all writs presented to them to be registrate in their several Registers expressing the day and houre when, and the names and designations of the persons by whom the saids writs shall be presented, and that the said niinut be immediately signed by the Presenter of the writ and also by the Keeper and patent to all the Lieges who shall desire inspection of it gratis. And that the writs shall be rcgistrat exactly, conform to the order of the said minute-book, all under the pahi of deprivation of the Keeper of the Register. And further their Majesties with consent foresaid dkci.aee the saids Keepers not observing the premises lyable to the damage of the parties prejudged, by the not due observing of this present Act. (0 1681, c. 11. (k) Campbell, 3d March 1795, M. 13,140. 80. Present system of registration — The act of registration consists, or ought to consist, in the following steps : 1. Entri/ in the minute-hook The entry in the minute- book or index of the register, must or ought to be immediately subscribed by the presenter of the writ and the keeper (a) ; and this is the more necessary, as the minute-book is neces- sarily the test of the date of registration so long as the sasine lies with the keeper for the purpose of registration (6'). But in practice, a custom has been introduced by some keepers, of using a mere note-book, in which each sasine is shortly de- scribed, and the entry subscribed by the ingiver at the time of presenting. The regular minute-book is prepared at lei- 127 DnpiU rif 1 n,r\ ( RciiiHlralion ijcoiis ot J gQ_ PRESENT SYSTEM. ] nf «.:.„. Constitution. S f- **' oa»iiie. sure by the keeper ; and after the sasine has been booked, the entry in the niiiuitc-book is subscribed by the person, whether the presenter or not, who takes out the writ and pays for its registration. There seems to be no authority in the statutes for this practice; and althougli, in a well- regulated office, itraay be observed without much risk, yet the keeper might be expo- sed to serious responsibility were the note-book to be lost, or destroyed in whole or in part, before the minute-book had been made up, or, when made up, should the minute-book altogether omit the entry of any deed, an occurrence which cannot by possibility happen when the minute is prepared at sight of the presenter. The practice involves also this considerable de- viation from the statute, that the actual presenter of the writ often does not subscribe the entry in the regular minute-book. It is true there is no nullity declared in the case of any such deviation ; but as the statute contains a heavy sanction as against the keeper, he might incur considerable risk if a sasine taken out by the wrong person were to be lost. The danger even to the parties appears from an election case decided in 1774 (c), in which the Court, after inquiring into the practice, with difficulty sustained a sasine as duly register- ed, where the entry in the minute-book had not been signed by the presenter and keeper of the date of the presentment. But in a competition of real rights the result might have been different. Put the case, that in place of a question upon the omission to subscribe the minute-book of its date, it should happen that a party aware of an attempt to defeat his right by priority in registration, should present his sasine afier the in^ivinn- of another sasine over the same subject, but before this last had been entered in the regular minute-book. 1 he party might, with some shew of reason, insist that his sasine shovdd be minuted, in terms of the statute, before any other entry were made, and the minute immcdiafclij subscribed by himself and the keeper, in order that he might have the be- nefit of the injunction, that writs shall be registered exactly conform to the order of the minute-book {d). It seems proper, therefore, that due time should be aftbrded for authenticating the entry of writs in the minute-book in terms of the statute. 2. Booki/if/ The booking or transcription of the whole 128 Tlppfl^ nf 1 r^n t Rcffistration IKd.ot ; 80. PRESENT SYSTEM. Joi'Sasine body of the writ into the register is the second step in the act of registration. As ah'cady observed, this is the ultimate test of registration and the essential part of the act, and it is here that the blunders have been committed which have pro- duced so much vexatious litigation. (1.) As it is physically impossible to book the writs presented for registration within the period of forty-eight hours prescribed by the act of 1617, the rule is adopted in practice, on the authority of a decision (cT), that they shall remain in the custody of the keeper and be transcribed into the register in the order of the minute-book without undue delay. At an early period, the Court refused to authorise the insertion of a sasinc in the register of the date ex- pressed in the minute-book, but out of its due order, which had been marked in the minute-book, and then carried away by the party to be produced in an action (e). (2.) Still it has been doubted if it is essential to the act of registration that a sasine shall be entered in the register in the order of the minute- book. The words of the statute (/) are, that the writs " shall " be registrate exactly, conform to the orderof the said minute- " book ;" and the sanction is directed against the keeper only, who is subjected to damages and deprivation of office. In one case (^), a sasine so irregularly booked was held not to be duly registered ; but a contrary judgment was in a later instance pronounced (A). In the latter case, it was noticed as a bad practice to prefix the date of presentment to the writ as transcribed into the register ; and with respect to the booking being out of the order of the minute-book, the Court held that obedience to the statute was not essential as regard- ed the party, but inferred only the punishment of the keeper. It was considered to be enough that the minute-book referred to the register by the volume and the numbers of the leaves occupied by the writ : and in a question as to the mode of presentment and of recording, the minute-book and register were held as proof of the facts certified by them respectively, not to be redargued by parole evidence. These were, how- ever, election cases, and involved not the question of priority, but of invalidity for the purpose for which the sasine was used. (3.) Where sasincs in competition hold a difi'erent place in the minute-book and register, the words of the statute (/), that 129 Deeds of ) 80. PRESENT SYSTEM. j ^^l:''''!:'" infoftinents " shall in all competitions be preferable and prc- " ferred according to tlie date and priority of the ref/istrations" seem necessarily to imply that the sasine first entered not in the minute-book or index, but in the register itself, shall be pre- ferred. The registration of any particular sasine within the sixty days is held to be proved, before actual transcription, by the entry in the minute-book, from the necessity of the case, since, when a number of writs are presented within a short period, some of them must lie for a considerable space in the possession of the keeper before being actually booked ; but after the minute-book and the register have been brought down to a particular day, although the minute-book will be sufficient evidence that any one sasine has been presented for registration within the statutory period, it cannot, it is thought, affect the question of priority between that and another sasine which has likewise entered the register. That question is one not simply of time but of precedency, and the precedency, according to the statute, is of the registration. (4.) When the minute-book and register agree, the sasine first in order is preferable, and there is no room, in any circumstances, for a jjari passu Q^Qci {k) . Where it is intended, therefore, that securities shall rank in the same order, a declaration to this purpose must be inserted in the bonds and sasines. (See Sasine on Conveyances in Security.) 3. llie attestation of the keeper. — (1.) The certificate or attestation added by the keeper at the end of the instrument is the third step in the act of registration. It is now of little importance, unless for the information of the party in whose custody the sasine remains, although at one period furnishing statutory evidence of the registration (/). The nature and object of registration preclude the notion that an error in the date of the attestation can have any effect on the validity of the title, and more importance seems to have been attached to it than it deserved. (2.) The Court have, on the death of a keeper, authorised his successor to attest the registration (m), and, in one instance, an interim keeper was appointed for that purpose («). (n) 1693, c. 14, above, p. 126. (6) Mackenzie, n. r. noticed in Wight, p. 221. Sec Skclly, below. I 130 c„":,tn:,. \ 80- ""■'SENT svsTEM. { «7££r (c) Skelly, (or E. of Fife), 7tli and 8th July 1774, M. 8830 , B. S. 5. 589. (d) Mackenzie, as above ; Wight, as above. Sec Dunbar, 10th March 1790, M. 8799. (e) Marr, March 1684, M. 13,537. (/) 1693, c. 14, above, p. 126. Iff) Drummond, 24th June 1809, F. C. (/i) Adam, 19th June 1810, F. C. See Ersk. (Ivory's edit.) p. 285, note 69; Bell's Com. 1. 679; Bell's Conv. of Land, p. 241, note. (0 1693, c. 13, above, p. 125. (/<) Douglas, &c. 21st Feb. 1835, F. C, 13 S. 503. Sec note to Lord Moncreiff's interlocutor. (Z) 1686, c. 19. (m) Young, 20th Dec. 1749, M. 13,375; Ballantyne, 15th Nov. 1750, M. 13,575. (n) Campbell, 8th Aug. 1733, Elch. Sasine, 9. 81. Errors in the register. — (1.) It may be stated as a general rule, that the copy of the sasine in the register must correspond, in all essential particulars, with the principal writ. Thus, where part of the lands were omitted, the instrument was to that extent held not duly registered (a). The same result has attended the erroneous transcription of essential words, such as the date of the instrument, or the year of the Sovereign's reign as specified in the warrant of the sasine (b). This rule follows necessarily from the terms of the statute of 1G17, for a sasine is plainly not registered as respects those parts which are omitted or blundered in transcription. (2.) The Court will not authorise the correction of even a clerical error in booking, for the reason that, as third parties can have no opportunity of being heard, the correction, or rather alteration of the register, would be inoperative (c). (3.) A practice having arisen of omitting the formal part of the doquet in transcribing the instrument, the Court, by Act of Sederunt (d), appointed the keepers to engross in the register the full tenor of the docpiet ; and, in consequence of a common practice with the town-clerks, of omitting or abbreviating the doquet in registering burgage sasines, an act was recently passed (e), which validates those sasines that had thus been imperfectly registered, but provides that the notary's doquet shall in future be engrossed at length in the register, under the same sanction and reservation as in the act of 1G17. («) Gray, 23d Feb. 1790, M. 8796 ; E. of Fife v. Stewart, 20th Feb. 1827, F. C. (p. 368 of the vol.) 3 S. 383. 131 IJLCtUol I Hi. EUHOr.S IN REGISTEK. ] of Sasiiic- (h) Macqucen, 23d Jim. 1824, F. C, 2 S. G37 ; Dcnnistoun, llitli Nov. 1824, F. C, 3 S. 285. (c) Innes, 20lh Dec. 181G, F. C, altered by Dun i oi sabine. clause of registration which it contains, is in no respect more binding than the charter (a). (1.) In questions, therefore, between the contracting parties and their heirs, the clauses of the charter become obligatory on its delivery to and accept- ance by the vassal. Nor is this effect confined to the indivi- dual named in the deed as vassal, and his heirs. Charters are generally conceived in favour, not only of the vassal and his heirs, but also of his assignees, by whom are meant dis- ponees before infeftraent {b) ; but although not thus conceived, they may be assigned unless the vassal is restrained ; (above, § 46). And as assignees may be either voluntary or legal, the obligations on the vassal are prestable by one who accepts a conveyance before infeftment, or, in other words, so long as the grant remains a mere personal right, and that whether he be an onerous or gratuitous assignee, or legal, by adju- dication or judicial purchase (c). A party in any of these characters takes the right as it stands in the person of the vassal, and does not trust to the register. (2.) Whatever restrictions, therefore, have been imposed on the vassal, al- though contrary to the natural characters of the feudal rela- tion, are valid in questions not merely with the vassal and "'his heirs, but also his assignees, voluntary or legal, so long as the right continues personal. Until infeftment, it does not acquire the character of a fee. (3.) But, on the other hand, clauses contrary to the qualities of the feudal relation, conceived in favour of the vassal, are not binding on the singular succes- sors of the superior, until infeftm^ent upon the charter has made them real burdens on the right of superiority. Before infeft- ment, the vassal trusts to the warrandice in the charter, which is personal only. 2. Effect of the registered sasine upon the feudal f/rant. — (1.) Infeftment duly completed by a registered sasine is therefore essential in a question with the disponces or adjudg- ing creditors of the superior, for, as the first registered sasine is preferred, the right of the vassal continues defeasible until it has been thus protected. A party holding a conveyance, whether with or without proper feudal or executive clauses, has a mere personal right or jus ad rem, which he can make real l)y infeftment only, evidenced ])y a duly registered sasine. 135 Deeds of > 84. FEUDAL EFFECT. j Resist ration Constitution. \ ( >) MagUlratc* of Invi-rncss, 2d Feb. 1769, M. 15,050. (c) Boyd, 22d Jan. 1766, B. S. 5. 919; ricston, 6th March 1805, M. 136 Denis of ) Qi ^„,,„., „„„„„^ { Rc'Kistration ^ ... .. \ 84. FEUDAL EFFECT. ] p a • Constitution. ) ( ot Sasine, App. Pers. and Heal, 2. In the case of Preston, the question occm-red, if cre- ditors could acquire a subject, the right to which (by disposition) continued personal in the debtor, free of a rif^ht of pre-emption constituted by back-bond in favour of the debtor's author. The Court having, in a prior action at the instance of the disponer, found, that the tenor of the back-bond and obligation ought to be inserted in all the subsequent titles and investitures of the subject, whereby the personal right in the debtor, as disponee, was connected with the qualifying obligation, it was held that the creditors co\ild only attach the sub- ject, as thus qualified with the right of pre-emption. (d) Ersk. 2. 3. 51. (e) Ersk, 2. 3. 48. (/) See Allan, 19th July 1780, M. 10,265. TITLE V. GRANTS OF SERVITUDES. 85. Servitudes positive and negative. — Servitudes, as restrictions on feudal rights, demand some notice. They are either positive or negative. (I.) Servitudes are positive, which entitle the proprietor of the subject to which they attach, call- ed the dominant tenement, to exercise certain rights and pri- vileges, such as pasturage, watering of cattle, &c., over the servient tenement or subject burdened with the right. (2.) Those servitudes, again, are negative, whereby the proprietor of the servient tenement is excluded from some use or enjoy- ment natural to the subject, such as the erection of buildings, or planting of trees, or the raising of buildings or allowing trees to grow beyond a certain height, so as to obstruct light or prospect. (3.) Servitudes, whether positive or negative, as regards number and kind, are clearly defined by law, and new ones cannot be created ; as regards degree, they are strictly interpreted. (4.) Rights or restrictions, not proper servitudes, constituted by private agreement, depend for their force upon personal contract, and are ineffectual against sin- gular successors, unless capable of being feudalised, and ac- tually made real or feudal rights ; and even servitudes by grant do not burden the right of the superior acquiring the property by a feudal forfeiture, but those only which are con^ stituted by prescription. (a) Ersk. 2. 9. 2. et stq. ; Bell's Princ. 979, and authorities cited. 8G. Positive servitudes These consist of pasturfuje. 137 m.c.lsof J 80. POSITIVE SERVITUDES. 5 S^^Sdel feal and divot, way or passarje, water, aqueduct, support, &c. (1.) Positive servitudes by grant seem to obey the rule which applies to the constitution of proper feudal rights, that the granter's title, if not made up at the date of the deed, must afterwards be completed in order that the grant may be vali- dated as against third parties by accretion {(U of ) o*- ( Grants of Constitution. [ » ' ' NEGATIVE SERVITUDES. | i;^^ purpose, if not superseded by a subsequent conveyance (b). More care is necessary in constituting a negative than a posi- tive servitude : the latter is perfected by possession, of which the former is incapable. Thus, an obligation in a preliminary deed, such as a minute of sale, to introduce the declaration of a servitude altius non tollencU, in the future perfect deed of conveyance of the subjects, has been held to be discharged by the acceptance of a disposition not containing the stipulated declaration (c). (2.) It follows that any mode of constitution, less formal than by written declaration or agreement, such as the exhibition of a plan which indicates buildings of a certain height and structure, is ineffectual against a vassal or dispo- nee {(l). Nor will mere tolerance without restrictive words con- fer a servitude of light or prospect (e). (3.) The terras of con- stitution must be precise; such, for example, as. To keep and maintain the r/round and space above described an open area in all time to come^for the preservation of the lights and prospect of the tenement^ likeioise above described, belonging to the said B. ; and I, the said A. and my foresaids, are hereby restrained from erecting any building, or planting trees therein, or raising any other obstruction to the said lights and prospect, (or above a certain height, according to the agreement of parties^ (4.) Where the constitution is by a separate and distinct deed or bond of servitude (y), and not in a mere preliminary writ, it is not essential, although advisable, to repeat the restriction in the subsequent titles and thereby make it a real burden, or to record the deed in the register of sasines. Sasine may however competently pass upon the deed, which, for that end, will contain the proper feudal clauses. (a) Ersk. 2. 9. 2. ct seq. ; Stair, as above ; Bell's Pr. f)7!), and autli. cit. {h) Cockburn, 1st July 1825, 4 S. 128, and II. of L. 2 \V. S. 293. See Pollock, I6th Jan. 1827, F. C, 5 S. 193. (c) Sivright, 19th Dec. 1828, F. C, 7 S. 210. (fi) Gordon, Ilth March 1814, reported in note to Young and Co., 17tli Nov. 1814, F. C, affirmed, 6 Dow, 87 ; Walker, Ilth March 1825, F. C, 3 S. 650. (e) Morris, I9th Feb. 1830, F. C, 8 S. 3G4. (/) 1 Jurid. Styles, 65. 88. Thihlage. — This agricultural tax is usually ranked 1 r,9 Dce.lsof } QO .,.„,,,, vrK ( Grants of Constitution. ! ^^' i"'»^'-^^I=- | Servitudes. amongst servitudes, although, according to our latest autho- rity, it docs not strictly belong to that class of burdens. Thirl- age still extensively exists, but is gradually being extinguish ed by the operation of the statute, which sanctions its com- mutation into an annual payment (a). The constitution of thirlage by deed may now be regarded as obsolete {b). (a) 39 Geo. III. c. 65. lb) See Ersk. 2. 9. 18, et seq. ; Bell's Princ. 1017, et seq. 89. CoMMONTY \. Nature of the rhjht — The right of commonty is usually classed among servitudes, although truly one of property, and thus differing from the servitude of pas- turage, or of fuel, feal and divot. (1.) Rights of servitude are necessarily co-existent with rights of property. When, of two proprietors of adjoining subjects, having a clause in their title-deeds of i)arts and pertinents^ or the privileges of ba- rony, one has had full possession of a separate subject, and the possession by the other of the same subject has been limited to particular acts which fall short of the common and ordi- nary use of the subject, the right of the latter amounts to a ser- vitude only, whereas that of the former is a right of property. The acts of possession exercised by the parties are there- fore essential to the determination of the question of right. Thus, the use of pasturage only is not exclusive of the notion of property in wild and uncultivated land, although another may have opened mines of coal, &c. ; it is the natural use of the subject ; but the exercise of tillage by one, and of pastu- rage only by another, excludes the idea of property in the latter, whose right is merely one of servitude. (2.) This rule may apply to the rights of a number of parties in the same subject, one or more having rights of property and others of servitude, which, as exercised over one and the same subject, make it common jjroperty or commonty (a). 2. Constitution (I.) In the circumstances stated above, (Art. 1.), the rights of the parties w^ere assumed to be explained solely by the state of possession, the titles of both being of the same import, — with parts and pertinents. But a right of property in a common, as contradistinguished from a servitude, mav be constituted by express grant, to which 140 Deeds of ) Qo ,>.^,,„,^x,-,^^ S Grants of Constitution. 5 ^•^- ^OMMONTY. 1 Servitudes. the grantee's possession is referable (b). Thus a conveyance of lands c?), this form of conveyance came to be exten- sively used, notwithstanding that a subaltern right was expo- sed to the casualties and forfeitures incurred by the subvassal's immediate superior, unless acknowledged by the confirmation of the overlord. Confirmation of this sort is not, however, to be confounded with that species of confirmation to be afterwards noticed, employed to complete the entry of a disponee. Its chief advantage was to save the right of the subvassal, when the fee of the immediate vassal fell to the superior by the casualty of recognition, in which event the subvassal whose right had been acknowledged took the phicc 143 Absolute j cjl, EARLY FORMS OF TRANSMISSION. J "'^'•"".y/''" Conveyances. ) ( Disposition. of his own immediate superior. Subaltern infeftments, grant- ed by the great vassals of the Crown or tenants in capite, who conferred them openly in the courts of their jurisdictions, were originally called public ; and those again which flowed from their vassals, base, (as being of a lower description,) or ])rivate, terms of which the import is now much altered. These base rights, we are told, increased greatly in consequence of a law (c) which forfeited the fee of any freeholder who should alienate so large a portion of his lands as to leave what was insufficient for the due performance of the services exigible by the superior, unless he had the superior's consent to or con- firmation of the alienation. This law was probably evaded on the plea that sub-infeudation was not an alienation ; and the multiplication of intermediate fees, to the great inconvenience of the barons, who thus lost sight of those liable in perform- ance of the feudal services, may have been the cause of the statute of Robert I., if such a law was truly enacted by the Scottish Parliament {d). That act (e) is said to have been borrowed from the statute of Edward I. of Enofland, known by its introductory words. Quia emptores terrarum, which abolished sub-infeudation, and by force of law consti- tuted the disponee upon infeftment, the vassal of his author's superior. It is accordingly to this statute of Robert that we are told to ascribe the origin of the charter a me de siiperiore mco {f), so well fitted to carry into effect the principle of the enactment ; since the holding, as the terms import, was to be of the granter's superior ; but superiors, unwilling to relinquish the forms of feudal supremacy, required that all transmissions of the fee should receive express confirmation from them ; and as practice often makes or modifies the law, this confirmation came to be regarded as indispensable. (a) F. 2. 52-55 ; slat. 31. of Will. Lion. (6) F. 2. 34, § 2. (c) Stat. 31. "Will, above. (d) .Stat. Rob. I. (1325,) c. 24. Item, For .sa mciklc as divers and smulry men be buying of lands and tenements pertaining to knights and otlier lords, to their great hurt and prejudice in time bygane hes entered the sainine the quhilks lands were sauld and annalzied be tlic tenants and freehaulders of the saidis knights and uthers great men and lords to be halden as of their foe of them- selves and their heirs and not of the saids knights and lords being overlords of 144 ALsolute I 91. E^yiLY FORMS OF TRANSMISSION. 5 Di' nosh ion the annalziers makers of the said alienation and infeftments whereby the said overlords did tyne and amit the marriages escheats and Arards quhilk did fall and pertain to them of their tenandries the quhilk was hard and prejudicial to them. It was therefore statute and okdained 2. That in time coming it sail bo lesome to any free man to sell his lands at his awne pleasure and will swa that the buyer of the lands sail hald the samine conteined in his infeftment immediately of him quha is overlord to the seller of the lands for the samine service and dewties as the maker of the infeftment and alienation did hald them before the making thereof. 3. And gif any man sells and disponis ane part and portion of the lands or tenements the buyer quha is infeft sail hald the samine part of the immediate overlord. 4. And he sail be burdened and charged incontinent with sa meikle service as may pertein to that part conform to the quantitie of the land and tenement quhilk is sauld. 5. And swa in this case ane part of the service sail be paid and done by him quha is infeft to the overlord, according to the quantitie of the tenement quhilk is sauld. Reff. Ma- jestatem, pp. 364-5, edit. 1774. See Bell's Conv. of Land, 3d ed. App. (e) Ross, 2. 256; Jur. Styles, 1. p. 82. (/) Ross, 2. 257. 92. Introduction of the double charter The situation of a purchaser became, from the necessity of obtain- ino- the superior's confirmation, equally hazardous as if the statute of Robert I. had not been enacted ; and so completely was that law disregarded, that an act passed in the reign of David II. (a) which prohibited alienations by the Crown vassals, " absque ipsius regis speciali licentia ;" and by a sub- sequent statute (i), alienation without previous licence was declared to be a ground of recognition or forfeiture of the fee. Still, although this act was extended to sub-infeudation, the penalty was not incurred unless the vassal alienated the maist part of the lands (c) ; and confirmation by the superior, after the alienation, became equivalent to previous licence. By a statute of James II. (fZ), the setting of lands in feu-farm was made lawful to the great barons, and excluded the casualties of the Crown ; and although this law was at a later period repealed, it would appear that much encouragement ha,d thereby been given to sub-infeudation ; but subaltern infeft- ments in portions not exceeding the half of the vassal's fee continued to be valid (e). In this situation, purchasers having no means of enforcing an entry with the seller's su- perior, resorted to the form of sub-infeudation, and besides obtaining a charter a m ) r. -k V History of r } 92. DOUBLE CIIAUTER. Di.no.ilioi.. by means of a chartor de vie, (a grant to be liolden of the seller,) containing an clnsory reddendo of a penny money or the like. This latter infeftment being merely subaltern, the purchaser was consequently subject to all the inconveniences attending the intervention of a superior between him and the overlord. But it gave a right to the property, which could not be defeated by a subsequent infeftment. The infeftments upon these two charters were combined in one sasine (/). (a) Stat. David 11. c. 24. {h) Stat. Kol). in. (1400,) c. 19. (e) Balfour, Recognition, c. 10. (rf) 1457, c. 71. See 1503, c. 90 aiul 91 ; Ersk. 2. 5. 7. (e) Stair, 2. 11. 15. (/) See M. voce Confinnation. 93. Statute of 14G9 (r/) anent apprisers A statute, passed for enabling apprisers, or creditors affecting the lands of their debtors by means of the diligence of apprising, to obtain an entry from the superior, proved the means of un- dermining the feudal power of the aristocracy, and gradu- ally introducing a free commerce in land property. By this enactment a creditor-appriser is entitled to an entry from his debtor's superior, on paying a years maill as the land is set for the time ; and as superiors had no title to examine the grounds of the debt on which the diligence proceeded, vassals were not slow to avail themselves of the advantage which the statute conferred, in enabling them indirectly to give a secure title to a i)urchascr. The seller granted an obligation of debt to the purchaser, upon which he apprised the lands, and thus became legally entitled to an entry, on the terms prescribed by the enactment (h). An exception from the ordinary rule at the same time received practical effect in transacting with the Crown (r). Purchasers from an immediate vassal of the Sovereign received an entry on payment of a composition to the Treasury, which has for a long period been fixed at a sixth part of the valued rent (without respect to the amount of the actual rental) of the lands. It is also probable that wadsets were at one period employed to give a title to a i)urchaser under the cover of a redeemable right. (See IVndsct.) K 14G CotvJy'ances. \ ^^' ^'I'^TUTE ANENT APPRISEBS. { ^tl. (a) 1469, c. 36. (Excerpt.) " And als the overlord sail receive the creditor " or ony other buyer tennent till him payand to the overlord a zeires maill as the <' land is set for the time. And failzieing thereof that he take the said land till " bimselfe and under-gang the debtes. (6) Ersk. 2. 7. 6. (c) Ersk. as above. 94. Public and private rights — Notwithstanding the means afforded by the statute of 1469 for indirectly obtaining an entry with the superior, sub-infeudation necessarily con- tinued to prevail, for an appriser behoved to pay a year's rent of the lands, which of itself operated as a check to the free transmission of property ; and the facility with which base or subaltern rights might be created became the source of a great evil. Infeftments, whether confirmed by the su- perior or merely subaltern, being at that early period pre- ferable according to their dates, those even who had paid an adequate price for land often found themselves excluded by rights granted to children or confident persons. An act («) was accordingly passed for validating the rights of onerous disponees obtaining peaceable possession of the lands, and re- taining it for a year and a day, in competition with persons put in private state thereof, not hij resignation in the hands of the Crown, nor hy confirmation icith precept from the Chancery, nor by resignation in the hands of the overlord, or his confirma- tion. The statute received a liberal interpretation, and the Court went even beyond its provisions, by sustaining a public infeftment although posterior to a private, where neither had been followed by possession. The terms of this enactment, and the maimer in which it was interpreted, serve to explain the meaning of the words public, and private or base, as ap- plied to infeftments ; and this is farther illustrated by a passage in Stair (/>), where he says, " Infeftments were esteemed pri- " vate, latent and simulate, retenta possessione, when the person " infeft was not put in possession, the infeftment passing only " between the disponer and the person infeft ; but if the in- " feftment did proceed from the disponer's superior by resig- " nation or confirmation, then the presumption of simulation " for want of possession ceaseth, because superiors use not to " grant such infeftments but upon compositions. And there- 147 Aljsolulo Conveyance , I 94. PUBLIC AND I'RIVATE INFEFTiMENTS. J i5|'jS"n. " fore, infcftments granted by the disponer's superior were *' called public infcftments, and were effectual from their dates ; " but the private or base infcftments were not efl'ectual till " the presumption of simulation ceased, either by natural " possession, or by uplifting maills and duties, or by processes " for obtaining these duties." It is obvious from this quo- tation, and another passage in the same author (c), that in- fcftments, although originally styled public or private, as they flowed from a superior higher or lower in the feudal chain, more generally received these distinctions according as they were completed openly, by means of the interposition of the overlord, or in a covert manner between the granter and re- ceiver. The term base is indeed employed by that author as synonymous with ujnoble ; but its application seems generally to have been to private or simulate infcftments. For these reasons, it has not been used under a former head of this work. It manifestly does not now apply to subaltern rights, however low in the scale, when proper feudal grants ; and indeed, in modern feudal language, it seems to have lost all other meaning than as denoting an infeftment upon the indefinite precept in the disposition of sale prior to confirma- tion. The protection thus given to infcftments followed by possession did not, however, remove the legal difficulty of obtaining an entry from the superior. A subaltern right, altho\igh good against the granter, and also against third par- ties when followed by possession, did not protect against the casualties of superiority falling in the person of the seller, and infeftment on the charter a me left the purchaser exposed to the caprice of the superior. This state of the purchaser's title continued until the establishment of the registers ; and although it was not until upwards of a century afterwards placed on its present footing, an important change then took place in the form of the conveyance. («) 1540, c. 105. (fc) Stair, App. 2. (r) Stair, 2. 3. 27. 95. Entry by resignation — Before adverting to the effect produced upon the purchaser's title by the establish- K 2 148 Ai.cnliiff. 1 r ~ ^ History of ConveyanL.l 9o. RESIGNATION. { Disposition. ment of the registers, it is necessciry to notice the form of entry by resignation. It' has been stated, (above, § 28,) that resignation by the symbol of a rod or baton was practised among the Romans, and was borrowed from their forms by the nations wlio overran the Empire, and established the feu- dal system. Resignation is, according to the feudal law, the rendering back the fee to the superior ; and, when the vassal gave up his right absolutely to the superior, the form was by an unqualified resignation, or, as we style it, ad remanentiam. But, as the transmission of the fee to a purchaser or other disponee, was not valid without the superior's sanction, (for . sub-infeudation, although an alienation, is not a transmission,) the superior might refuse a resignation qualified with the con- dition of his investing another with the fee, styled infavorem: it was therefore advisable that his consent to this sort of con- veyance should in the first instance be obtained. The cere- mony was then performed in presence of the superior, but not necessarily upon the ground of the lands ; and after recei- vino- the symbol, he delivered it to the new vassal or his attor- ney, in presence of a notary and witnesses. A notarial in- strument upon the fact was made out, and on this evidence the new vassal might obtain letters of horning for charging a refractory superior to give him a charter upon the resigna- tion (a). The entry by resignation is the genuine feudal form of transmission, but, as being dependent on the will of the superior until a comparatively recent period, it was rarely adopted excepting in the entry with the Crown. It gave no means, therefore, to a purchaser of obtaining a title which he did not possess in the charter a me, and was even a less summary mode of getting an entry when the superior had been barerained with for his consent to the transmission ; for resignation is completed by charter and sasine, whereas infeft- ment on a charter a me is at once validated by the superior's confirmation. (a) Craig, 2. 2. 10; Mack. 2. 7. 17; Ersk. 2, 7. 23; Lord Braco, 22d Feb. 1741, M. 6919. 96. Union of the two charters and the niocuRA- TORY OF resignation — At the beofinninff of the seventeenth 149 ALsolule j 90. TWO HOLDINGS COMBINED. S lIi!no5ion. century, tlic entry of a purchaser must thus have been by re- sifrnation infiu-orcm consented to by the superior, or by in- feftmcnt on a charter a me confirmed by him ; or if the supe- rior refused to receive the purchaser as his vassal, it behoved the purchaser either to accept of a subaltern right from the seller, or to comprise the lands for a fictitious claim of debt, and charge the superior to receive him under the provisions of the act of 14G0. The delay thus so often caused in obtain- ing a public right increased the facilities for the fraudulent private or base infeftments to which allusion has been made, at the same time that the preference given to a posterior public right, in competition with a subaltern infeftment not followed by possession, tended on the other hand to render subaltern rights insecure, even when obtained in optima fide . The test of possession likewise was of a highly inconvenient nature, and subjected the best founded rights to the doubtful result of parole testimony. It was full time, therefore, for the introduction of a surer rule of preference; and such would have been the result of the statute of 1617 (a), establishing the registers, which necessarily took away the character of private or simulate from all infeftments didy registered, had full effect been given to its provisions. But the old mode of deciding preferences by the test of possession was for some time followed, under the modification that civil possession, by drawing the rents, or an action to obtain it, came to be sus- tained in place of the actual possession of the lands {l>). By this means the evils produced by litigation were increased (c). In this state of the law, purchasers put themselves in a situa- tion to resort to any of the known legal modes of investiture, which might, in the circumstances, be eilcctual to secure their purchase; and with that view they took the sellers bound in a formal contract of sale, to grant, on the demand of the pur- chaser, all necessary deeds, including the charters a mc and dc me. This form of a contract would seem to have been adopted, from the notion that a charter or disposition, until followed by iufeftuient, im})urtcd only a naked paction, and not an obligation which could ])roduce action against the granter or his heirs (). () Jur. Styles, 1. 9G, el seq. (c) 54 Geo. III. c. 137, § 42. (d) Moir, 27th May 1830, F. C, 8 S. 823. 114. Article VII. Public burdens (a) — This clause expresses the respective obligations of the parties in regard to public burdens. (See above, § 57. 3, GO.) (a) Septimo, The said A. shall be bound and obliged, as he hereby binds and obliges himself and his foresaids, to free and relieve the purchaser and the said lands and others, of all feu, blench and teind duties, ministers' stipends, school- masters' siilaries, and other legal and public burdens due and payable out of the said lands and others for crop and year , and of the cess or land-tax payable for the same preceding the day of ; and the purchaser shall be obliged to free and relieve the said A. and his foresaids of the said feu, blench and teind duties, ministers' stipends, schoolmasters' salaries, and all future augmentations thereof, cess, and other legal and public burdens, from and after the said respective periods, and in all time coming. 115. Article VIII. {a) — To deliver a sufficient PROGRESS In the Style Book this clause is so expressed as to bind the cxposer to deliver to the purchaser a sufficient progress of titles ; and at the same time it is stipulated that the purchaser shall satisfy himself before the roup of the suf- ficiency of the progress otFcred, and be barred from future objection. The clause ought to be more cautiously express- ed {b) ; and when the rit/ht is undoubted, the cxposer ought either to undertake lo complete the title at his own expense, or stipulate that the purchaser shall be satisfied with the pro- gress offered. (a) Octavo, Along with the said disposition there shall be delivered to the purchaser a progress of writs and title-deeds of the said lands, and others, con- form to an inventory thereof subscribed by the said A., as relative hereto; Declaring, That the purchaser shall be understood to have satisfied himself with the sufficiency of the said progress and title-deeds previous to the roup, and shall not be entitled to object to the same thereafter upon any ground what- ever. (6) See Rowand, 24th Xov. 1769, M. 14,178. It was provided, " that the " seller should be liable in warrandice from fact and deed allenarly, and to " deliver such writs )th June 1828, F. C, 6 S. 999. Iff) Crawford, 20lh Dec. 1822, F. C. (A) Ersk. 3. 7. 5. 123. Title of an adjudger Charter and sasine pro- ceeding on a decree of adjudication is an available title to prescribe an irredeemable right to the subjects adjudged, after the expiry of the legal, without a decree of declarator (a) ; and it may be assumed from analogy, that a sasine moi-e hurgi on such a warrant would be sufficient within burgh. Oljjec- tions to the warrant of the charter, as in the ordinary case, and to the resting owing of the debt, are excluded by the lapse of the forty years (h). (a) Caitcheon, 22d Jan. 1791, M. 10,810; Johnston, 7tli June 174j, M. 10,789 ; Robertson, 10th May 1813, II. of L., 3 Dow, 108. See Orniiston, 7th Feb. 1809, F. C; Dalziel, 17th Jan. 1810, F. C; M'Lellan, 9th Dec. 1763, B. S. 5. 893 ; More's Notes on Stair, r. Prescription. Note — Mr Bell (Princ. 2012,) lays it down that adjudication, followed by sasine, is a good pre- scriptive title, without reference to the expiry of the legal ; but the cases do not M 178 Absolute 7 123. TITLE OF AN ADJUDGER. j ^tIhp" Conveyances. ) i xitie. appear to go that length, although a decree of declarator has been held unne- cessary. (6) Ged, 5th Dec. 1740, M. 10,789. 124. Possession 1. Nature of the possession (1.) The possession for the prescriptive period must be continuously and together following the date of the first infeftment. It follows, perhaps, that a sasine duly registered is a sufficient prescrip- tive title from its date, without regard to that of the registra- tion. (2.) Possession need not be actual and real, but only civil, by the parties^ their tenants or others having their rights. These include adjudgers (a), wadsetters, liferenters, heritable creditors, disponees before infeftment, and the like (i) ; and all inquiry into the origin of the possession is excluded (c). (3.) But the possession of the superior is not only not bene- ficial to the vassal, but operates to cut down his base right ; for the title to the superiority being ex facie a title to the lands, tanquarn optimum maximum^ possession on it for the prescriptive period excludes all inquiry as to other rights of property. And the same rule seems to maintain, even where the titles to the superiority and property are in the person of the same- individual {d). (4.) Possession must be perfect in degree. Thus, the exercise of salmon-fishing by means less slender than net and coble is not relevant to infer the right under a clause cum piscationibus ; (above, § 49. 2.) (e). (5.) The possession of a right of patronage is of an anomalous de- scription, and depends greatly upon circumstances ; but the exercise of it on at least two separate occasions, without inter- ruption used against the prescriber, or neglect on his part during the intervals or any part of the forty years, seems requisite for the security of his title (/*). (6.) Possession of teinds must be to the exclusion not of the minister, but of the titular. 2. Interruption of possession (1.) Prescription may be interrupted via facti^ by assuming possession ; by notarial protest ; or by judicial process. Interruption by process must proceed on a summons passing the Signet, and executed by a messenger-at-arms. (2.) Instruments and summonses of interruption, and their executions, to be available against purchasers and singular successors, must be registered in the 179 ,^^*"'"*'^ I 124. POSSESSION. JTille' Conveyances, j l aihc reo-ister of interruptions within sixty days from the date of the instrument or execution (y); and by the same statute it is declared, that interruptions viafacti shall be effectual against the heritor and possessor of the ground only, unless an in- strument be taken upon the fact and duly registered. (3.) Interruption via facti merely breaks the course of prescrip- tion : that by citation lasts only for seven years (h), unless followed by an action, which prolongs its effects for forty years (/). (4.) Minority suspends, but interrupts not the course of prescription, and is available only to the party in the actual right (h). (a) Note The possession of an adjudger having a charter and sasine, which is itself a prescriptive right, is thus available both for and against the proprie- tor. See M'Lcllan, 9th Dee. 1763, B. S. 5. 893. (6) Ersk, 3. 7. 5 ; 2. 1. 22 ; Younger, 30th June 1663, M. 10,924 ; Mil- ler, 7th Feb. 1766, M. 10,937. (c) Wilson, 6th August 1766, B. S. 3. 543, 926, 930, and H. of L. 10th Feb. 1770; Johnston, 7th June 1745, M. 10,789; Maclean, 2d July 1777, B. S. 5. 544. (d) Campbell, 19th Dec. 1765, B. S. 5. 915; Bruce Arnott, 6th Dec. 1770, M. 10,805; Middleton, 22d Dec. 1774, M. 10,944, B. S. 5. 614; Ilailes, 587. See Harvie, 29th Jan. 1822, F. C, 1 S. 277 ; LordElibank, 21stXov. 1833, F. C, 12 S. 74 ; Bontine, 2d March 1837, 15 D. 711. (e) Chisholm, 17th June 1801, M. App. Salm.-Fkhing, 1 ; D. of Suther- land, 11th June 1836, F. C, 14 D. 960. See Forbes, 3d Dec. 1701, M. 10,929. (/) Stair, 4. 40. 20; Ersk. 3. 7. 3 ; Earl of Home, 28th July 1738, M. 10,777, as reversed on Ap. ; Macdonell, 26th Feb. 1828, F. C, 6 S. 600. {g) 1696, c. 19. (/«) 1669, c. 10. (/) Ersk. 3. 7. 43-45; AVilson, 2d Feb. 1705, M. 10,974. See Wallace, 7th July 1830, F. C, 8 S. 1018. (Jt) Ersk. 3. 7. 45 ; Bell's Princ. 2022. 125. Possession on double title — It often happens that the conveyancer must form an opinion upon the validity of the title ottered to a purchaser, in circumstances where the application of the rules of prescription is by no means clear. These chiefly occur where the seller has two separate titles in his person. When the titles are both unlimited, he may of course grant a valid conveyance ; but if one is limited and the other unlimited, the rules which seem to be clearly ascertained arc, (1.) If the seller possess on a fee-suuple apparency, and M 2 180 .^^^"'"^''' { 125. POSSESSION. ]^'fZ'" Conveyances. 3 i Aitie. likewise as having right under an entail, the entail, although not feudalised, being the title on which he is by law bound to possess, will be regarded as the lex feudi, — the regulating title. To it, accordingly, will the possession be ascribed, so as to exclude prescription upon the unlimited title (a). A purchaser, therefore, aware of the existence of the entail, may not be m bona fide in transacting with the proprietor. (2.) Where, again, by making up titles in fee-simple, the seller or his predecessor has clearly indicated his preference to the unlimited title, the possession will be ascribed to it, and the fetters of the entail held to be worked off by force of the posi- tive prescription (i). (3.) But where the actual title of pos- session contains terms reserving all right which the proprie- tor may have under the deserted title, prescription is regarded as inconsistent with the terms of such title of possession (c). The further prosecution of the subject of prescription would be foreign to the object of a work of a practical nature (c?). (a) Maxwell, 21st June 1808, M. App. P/esen/j^ 8 ; Lumsdaine, 13th June 1811, F. C. (V) Ersk. 3. 7. 6 : Bell's Princ. 2020, and cases cited. (c) Dalzyell, 17th Jan. 1810, F. C. (fi) 'Sote. — The principle which regulates the points noticed in this section, plainly is, that possession is to be ascribed to that title which the proprietor by his acts declares to have the preference in his own mind. But where the titles are both unlimited, it has been held that he cannot confer a preference upon either by renewing it in his own person, because service is not an effectual mode of altering a destination; (Smith, 30th June 1752, M, 10,803 ; Durham, 24th Nov. 1802, M. 11,220.) Possession is accordingly ascribed to both in- differently. The consequence is, that when one of the titles embraces a series of heirs different from the heirs-general of the proprietor, although contained in deeds neglected by him, the estate may possibly pass to a stranger after a long period of years. The only ground on which this distinction can be maintained seems to be, that a party who has the power to alter a destination and neglects to alter it, is presumed to make it his own ; but it must be observed, that by passing by the destination, he clearly indicates his wish to ascribe his possession to another title ; and that the latency of the deed containing the destination, which may be a frequent case, must exclude the presumption that he has adopted its pro- visions. (See Zuille, 4th March 1813, F. C, and opinion of Lord Gillies.) TITLE VI. SEARCHES OF INCUMBRANCES. 126. Negative prescription 1. Application of the sta- tute — The security of the purchaser against heritable debts 181 and other incumbrances is founded on the negative prescrip- tion. By the act of 1017 (n) it is ])rovided, that " all actions " competent of the law on heritable bonds, reversions, con- " tracts or others whatsoever, shall be pursued within forty " years from the date of the same, except the said reversions " be incorporated in the body of an .infeftment ; and that " minority and less age sail no ways be counted, but only the " years during which the parties against whom the prescrip- " tion is used were majors." These terms apply to bur- dens, incumbrances, and rights of action only, and do not affect rights of property {b). 2. Time from ichich j)rescription runs — (1.) In inter- preting this statute, the Court have fixed the period at which the debt or right can be demanded in judgment, as the time from which the prescription of bonds and other obligations begins to run (c). (2.) lleversions, again, are specially except- ed from the operation of the statute, when incorporated in the body of an infeftment, which implies their due registra- tion (d) ; but sasine on a bond in no respect affects the course of prescription, since the feudal right is merely accessory to the debt. (3.) Prescription runs against a decree of adjudi- cation from its date, or, if followed by infeftment, from the date of a duly registered sasine (e). 3. Hoic interrupted (1.) Prescription of heritable securities is interrupted extrajudicially by partial payments of principal or interest, by an engagement to pay interest, although payment is not made within the forty years, by spe- cial submission, or by written acknowledgment of the resting owing of the debt {/) ; and judicially, by citation of the debtor in an action for payment, by the diligence of horning and poinding, arrestment, inhibition or adjudication, or by production of the grounds of debt in an action to which he is a party, or the proceedings under a sequestration of his estate {(/). (2.) Of adjudications, the prescription is inter- rupted by possession of the subjects, or even by infeftment on the decree (A) ; but after decree of declarator of the expiry of the legal, the adjudication becomes a right of property, and is therefore not subject to the negative prescription (/). (3.) Of inhibitions, the prescription begins to run not from the date of the execution, or even that of registration, but 182 . , , . 1 , C Seai'ches of Absolute ) 126. NEGATIVE PRESCRIPTION. {incumbrances. Conveyances. > '■ from the publication by sasiiie, or the use of real diligence upon the right granted in prejudice of the inhibition : it is interrupted by an action of reduction of the prejudicial deed ex capite inhihitionis, or production of the grounds of debt in a sequestration (k). (4.) Infeftments in real icarrandice do not prescribe till after the eviction of the principal subject, al- though, when the title to the principal subject is fortified by prescription, the nexus flies off. («) 1617, c. 12, above, p. 173. \h) Ersk. 3. 7. 8; Bell's Princ. 2017, and cases cited. See, in particular, Paul 8th Feb. 1814, F. C. This case illustrates the distinction between a right ofpropertij and a right of action. The subjects had been adjudged beyond the forty years. Possession followed, and decree of declarator of expiry of the legal was obtained, but the charter and sasine had been expede within the pre- scriptive period. The adjudger had thus acquired an undoubted feudal title, although not a prescriptive right to the subject. The party challenging was the heir of the debtor, and his right to reduce the decree of declarator was held to be lost by the negative prescription. — See also Macdonell, 26th Feb. 1828, F, C. 6 S. 600, (opinions of Lords Mackenzie and Corehouse.) The combined view of the operation of the positive and negative prescriptions, so generally taken (Ersk. 3. 7. 8,) appears to be unnecessary for the solution of cases on competing titles. The positive prescription is completed by possession on a feudal title for forty years, and the right of the party is declared by the statute to be invincible, except on the single plea of falsehood. This prescription operates, therefore, not only/or the possessor but against all others, and it docs not require the aid of the negative prescription to cut down the opposing title. This last ap- plies, by the plain meaning of the statute, to burdens and incumbrances only, and not to rights of property.— See also E. of Duudonald, 12th May 1836, F.C., 14 D. 737. (c) Ersk. 3. 7. 6. (d) Elliott, Jan. 1727, M. 10,977; Munro, 19th May 1812, F. C. ; Ged- des, 28th May 1819, F. C, See Chambers, 6th June 1823, 2 S. 366. See Hamilton, 28th Jan. 1834, F. C, 12 S. 349. Note.— A. reversion thus pro- tected is a very anomalous right. Although, as a right of redemption merely, it is of a lower description than a feudal right of property followed by possession, it is good in competition with such right, even when fortified by the lapse of the prescriptive period. (e) Anderson, Sd March 1758, M. 10,676. (/) Ersk. 3. 7. 39 ; Bell's Princ. 616 ; Blair, 7th Feb. 1672, M. 11,233; Guthry, 5th June 1696, M. 11,257; Skene, Feb. 1686, M. 11,256; Vans, 14th June 1816, F. C. (g) Ersk. as above; Bell's Princ. 615-622; 33 Geo. III. c. 74. (A) King, 24th Feb. 1828, 6 S. 643. (i) Robertson, 2d Aug. 1770, M. 10,694; Ross, Dec. 1776, B. S. 5. 543. Ik) Ersk. 3. 7. 36, 38; Moutry, 22d Nov. 1682, M. 11,187 ; 33 Geo. III. c. 74. (/) 1617, c. 12, as above. Sec Durham, 9th July 1800, M. 16,641. 183 Absolute j 127. DEFECTS OF A SEARCH. 5 Searches of Conveyances. S t Incumbrance*. 127. Defects of a search for forty years It fol- lows from what is stated in § 126, that searches of the regis- ters of sa.sinc's, reversions, &c., of inhibitiuns and of adjudica- tions, arc not sufficient to exhibit all those burdens which may attach to lands, or shew that they are entirely free from incum- brances. Heritable bonds, or other securities for debt, may be preserved for a long period by payments of interest, or other modes of interruption. Adjudications may have been followed by possession, and, with regard to inhibitions, their operation seems to be perpetual, excepting as against parties to whom deeds may have been granted in prejudice of the dili- gence. Forty years are understood, however, to be the legal term beyond which the seller is not bound to furnish a search of the registers ; but, in suspicious cases, it is plainly the in- terest of the purchaser, and the duty of his agent, to carry the inquiry to a more remote period. The chief dangers which may remain undiscovered by searching the registers for the usual period are mentioned below, (§ 128,) but there are many risks to which a purchaser is exposed which cannot be discovered from the registers. These form the principal and a very great security to purchasers, and one which our neigh- bours appear resolved to deny themselves in the face of reason and experience ; but they do not exclude the necessity, on the part of the seller, of occasionally resorting to other sources of information. 128. Dangers not appearing from the registers — 1. Litif/iositij The chief risks to which purchasers are ex- posed arise, Jirst, from judicial proceedings, which, during the period of their operation, produce cither a sequestration of property, or an interdict against the proprietor, to the effect of preventing alienation or the constitution of heritable burdens to any extent, in the one case, and in the other to the prejudice of the party using the diligence ; and, secondly, from claims, objections and burdens which attach to property in the hands of onerous disponecs, as affecting the title of the dis- poner. Of the first class Z/iY/<7W5«Vy is the chief. (1.) Liti- giosity by action, which operates as a sequestration of the property for behoof of the party who prefers the claim, is pro- 184 Absolute ) in-. ^ Searches of Co„v;ja.ces. ( ^ ^8. LATENT DANGERS. { l„eu„>brances. duced by the calling in court of a summons of declarator or of reduction for trying the right of property, or of ranking and sale for disposing of subjects by judicial sale and divi- ding the price among creditors (a), and retains its effect du- ring the dependence of the action (b). (2.) Litigiosity by diligence is produced by the execution of a summons of ad- judication (c), or the publication of letters of inhibition {d). In the latter case, the effect continues till registration of the diligence, when the interdict assumes the perfect form of a completed inhibition : in the former it lasts till decree is pronounced, if no undue delay occur on the part of the cre- ditor, and thence for a reasonable time within which he must either obtain infeftment or charge the superior to give an entry. If he take this latter step, infeftment may be deferred till after the expiry of the legal (e) ; but if neither course be followed within a reasonable period (/), the litigiosity ex- pires, and the voluntary deeds of the debtor will receive effect. (3.) The existence of inchoate inhibitions and adjudications can only be discovered by examining the warrants of signet letters and summonses at the Signet-office. Of these an in- dex ought therefore to be formed. 2. Deathbed The plea of deathbed is a ground of reduction which attaches to the property, and, as it affects a purchaser (/;), it will follow the subject in the hands of his disponee. 3. Fraud, &c Forgery and fraud are grounds of reduction by statute {h), and, as affecting the right, will attach to the property in the hands of an onerous disponee. 4. Claims of ancestor s creditors — The right of the cre- ditors of the deceased to a preference over his heritage is preserved by a statute (z), which enacts, that " no right or " disposition made by the apparent heir, so far as may pre- " judge his predecessor's creditors, shall be valid unless made " and granted a full year after the defunct's death." This enactment restrains the heir, whether entered or possessing on apparency, and affects even his onerous deeds (A). 5. Exception of conjunction and confidence — This ex- ception, introduced by statute (/), is pleadable against aH onerous disponee, when the prohibited relationship or connec- 185 Absolute 1 128. LATENT DANGERS. 5 Searches of Conveyances. S I Iiicunibranccs, tion appears on the face of the seller's title ; e. ff. if it express that the seller is brother, son, or steward to the party from whom he received the conveyance ; and the seller's title must in such circumstances be supported by positive evidence of onerosity (?«). But the plea is competent only to the credi- tors of the party against whose deed conjunction and confi- dence are pleadable. 6. Servitudes These, whether positive or negative, may be constituted without infeftment. Negative servitudes are incapable of visible occupation or possession ; and as the consent necessary to their constitution may be proved by the titles of either the servient or dominant tenement, or by a writ in a separate form, they are the most latent of all restrictions upon property. (See Servitudes.) A purchaser is protected in some degree against the consequences of a negative servitude by the implied obligation on the seller to make known its ex- istence («), and more etiectually against a positive servitude by inquiries into the state of possession. 7. Tacks Tacks or leases are protected against sin- gular successors by statute ; and as they are not feudal rights, although materially affecting the value of the subjects, they do not enter any register. 8. Terce. — The right of a widow to terce is measured by her husband's sasine under the burden of real rights consti- tuted prior to his decease ; but it does not require infeftment in her person, and cannot therefore be discovered from the registers. (See Marriiuje-Contract.) 9. Courtesy The husband's right of courtesy is in like manner constituted by law, and does not appear in any register. (See Marriafje-Cuatract.) (a) Bell's Com. 2. 152; Morison, 8th March 1787, M. 8335. (i) Mcnzies, 9th Jan. 17(50, M. 14,165. (c) Ersk. 2. 12. 41. (rf) Ersk. 2. 11. 7. (e) "Wallace, 8th Dec. 1736, M. 8388. (/) Duch. of Douglas, 26th July 1764, M. 8390. A. mora oi near three years was held to take off litigiosity ; and it seems to have been thought that the falling asleep of a process of adjudication would produce this effect. {g) Ersk. 3. 8. 97 ; Bell's Princ. 1797. (A) 1617, c. 12, above, p. 173. 18G Absolute J 128. LATENT DANGERS. j T,?3™1 Conveyances, y ( Incumbrances. (;) 1661, c. 24. (^k) Magis. of Ayr, 14th June 1730, M. 3135; Taylor, 26tliNov. 1747, M. 3128. (/) 1621, c. 18. (/h) Ersk. 4. 1. 36, («) Urquhart, 2d June 1835, F. C, 13 S. 844. 129. Practical rules — 1. Voluntary sales — The lead- ino- rules to be deduced from the preceding observations seem to be these : In transacting a purchase of lands, the pur- chaser's agent ought in the Jirst place to examine the title- deeds of the property in order to satisfy himself that the pro- gress is complete, and a formal and valid title made up in the person of the seller. Secondly, To call for a search of incumbrances for the legal period of forty years ; and where there is reason to suspect the existence of burdens which may have been preserved in force by minorities or other legal in- terruptions, such as the payment of interest or of sums to ac- count of the principal, to cause a further search to be made for such a period as will satisfactorily shew the real state of the property. A register of inchoate diligence at the Signet- office would form a -valuable addition to the present establish- ment of public registers. Thirdly ^ To make such inquiries as may lead to the discovery of servitudes or heavy feu-duties, and to examine the leases of the subjects in order to ascertain the true rental as well as their conditions, and whether they have become by possession obligatory on singular successors. Fourthly, In the event of incumbrances existing, which the seller is able to discharge, or the price sufficient to extinguish, to enter into a formal minute of sale or other sufficient declara- tion of a concluded transaction, taking care so to frame the deed as to make the delivery of the disposition contingent on receiving a clear title and unincumbered subject, to provide for the complete extinction of all burdens, and stipulate that a title shall be made up by the seller, (if the title should be de- fective,) within a fixed period. With respect to the other latent objections which have been noticed, it is obviously impossible to lay down any general rule. Practice, the state of the titles, and the circumstances of the parties, must regulate the con- duct of the practitioner. 187 Absolute ) 129. PRACTICAL RULES. ( Searches of Conveyances. ) { Iniumbrances. 2. Public and Judicial sales. — The stipulations in articles of roup may impose additional duties on the man of business. These plainly depend on circumstances. But it will be observed, that in judicial sales the rental and value are not warranted, and are not to he depended on ; (above, § 108. 1.) TITLE VII. DISPOSITION OF SALE (o). 130. Meaning of the term — Having now endeavoured to explain the nature and objects of the forms preliminary to the disposition of sale, and shortly referred to the rules of prescription of real rights, I shall notice in their order the different clauses of that deed. It will be kept in view, that in its ordinary form, the disposition is a deed not of constitu- tion, but of transmission. Stair (i) calls it, the traiismission or conveyance of real rights from the disponer to his singular successors ; and although, as a mere conveyance of a right, the expressions used by Erskine (c) in treating of the char- ter, that it " imports not whether it be executed in the style " of a disposition or of a charter," may be sufficiently cor- rect, yet as a means of establishing a feudal title, there is a marked distinction between the two deeds. The charter is employed to create a subaltern fee, whilst the ultimate ob- ject of the disposition is to transmit a fee already constituted to a singular successor, to be held of the same superior in the room and place of the disponer. The disposition, it is true, sometimes assumes the purpose of the charter ; but it is then distinguished by the term feu-disposition^ and is vir- tually a charter, as containing warrant for infeftment de me only. (See § 41.) (n) Jurid. Styles, 1. 100. {!,) Stair, 3. 2. 3. (f) Ersk. 2. 3. 19. 131. Clauses of the disposition. — The disposition con- tains the following clauses : 1 . The narrative or introductorg clause; 2. The dispositive ; 3. Obligation to infefl; 4. Pro- curatorg of resignation ; 5. Clause of absolute ivarrandice ; 6. Assignation to rents and title-deeds ; 7. Clause of tcarrandice 188 Absolute J 131. CLAUSES OF THE DISPOSITION. 5 ^^o^i/io" Conveyances. ) (of Sale. of said assignation ; 8. Obligation to free the subjects of public biirdens ; 9. Clause of deliverg of the titles ; 10. Clause of re- gistration ; W. Precept of Sasine ; 12. Testing clause. 132. Narrative clause (a) — 1. Description of the seller. — Variations in regard to the seller arise from the nature of his feudal or legal status. ( 1 .) Thus, a party infeft is described as heritable proprietor of the lands ; an heir-ap- parent unentered as eldest lauful son, &c. (as the case may be,) and apparent heir of the deceased A. his father, (or other ancestor) ; a party having a personal right, that is, an unexe- cuted procuratory of resignation or precept of sasine in his person, contained in a prior deed of conveyance, as proprietor simply (i). (2.) The legal status of the seller often oc- casions the concurrence of other parties in the conveyance. Thus a disposition by a minor pubes, (a female between the ages of twelve and twenty-one years complete, and a male between those of fourteen and twenty-one,) is granted with the consent and concurrence of his curators ; but although a sale by a minor with such concurrence is not of its own nature invalid, it is subject to reduction on proof of minority and lesion (c) . (3 .) The heritage of a pupil (one under the complete age of twelve if a female, and fourteen if a male,) cannot, how- ever, be alienated without the authority of the Court ; and it is tdtra vires of the Court to sanction a sale, except upon great and urgent necessity. In all the more recent cases, the appli- cation for authority to sell has been refused (AT,T-*xr.TTTjT.i7M- C Disposition f, > lot). REAL BURDENa. -J „f q^ip Conveyances.) t oi oaie. C. Fonns of attaching reserved burdens — It is laid down by Lord Stair, that arrestment and forthcoming are valid forms of diligence for this purpose ; but the weight of authority is held to be in favour of adjudication after the burden has been made real by a registered sasine (y). (a) Martin, 22d June 1808, M. App. Pers. and Real, 5; Forbes's Tr. 14th Dec. 1833, F. C, 12 S. 21. (h) Stewart, 18th May 1792, M. 4649. (c) M'Intyre, 3d Feb. 1824, F. C, 2 S. 664. id) Ersk. 2. 3. 49; Bell's Princ. 920-1 ; Bell's Com. 1. 688-9; Broughton's Crs. 20th July 1739, M. 10,247; Stenhouse, 21stFeb. 1765, M. 10,264; Allan, 19tb July 1780, ]\r, 10,265, affirmed on ap. SeeWylie, 19th Jan. 1830, 8 S. 337. (e) Ersk. 2. 3. 50 ; Bank. 2. 5. 25 ; Bell's Priue. 919, and auth. cit. Allan, as above. (/) Declaring always as it is hereby expressly provided and declared that the lands and others with the pertinents above described are hereby dis- poned under the express burden of £. sterling being part of the purchase money of the same remaining unpaid, interest thereof from and a fifth part more of penalty in case of failure in punctual payment to me at the term of of the said principal sum, all payable to me the said A. conform to a bond of this date granted by the said B. to me therefor. And which sum of £. sterling interest and penalty as aforesaid, are hereby declared a real and preferable burden affecting the said lands and others before disponed, (or, as in note (r), reserve power to revert to the former infejhnent,) and are appointed to be engrossed in the infeftments to follow hereupon, and in all the future trans- missions and investitures of the said lands, ay and until complete payment be made thereof in terms of the foresaid bond. (The ohlifjation to infeft, inocuratory of resignation, and precept of sasine will he qualified as foUoxos) : But always with and under the real burden of the foresaid principal sum of £. interest there- of and liquidate penalty in case of failure payable as above mentioned. See Jurid. Styles, 1. 157. (^) Bailie, 23d Feb. 1809, F. C. (A) Declaking That although the said lands and others are conveyed to the said C. in fee, yet it shall be free and lawful to the said B. and in his power at any time during his life not only to set tacks thereof to continue for any * space of time even after his death for payment of such rents as he shall think proper; but also to alienate and dispone the said lands and others in whole or in part either gratuitously or for onerous causes, and to burden and affect the same with debts to the value thereof; and generally with power to the said B. to do and exercise all other powers acts and deeds concerning the premises ■ without the consent of the said C. and his foresaids, as fully and effectually as if the fee of the said lands and others had been hereby disponed to him. (i) Bell's Pr. 928; M'Lean, B. S. 5. 444. See Wilson, 14th Dec. 1819, F. C. {k) Elliott, 16th Dec. 1698, M. 4130; Rusco, 17lh Jan. 1723, M. 4117. See More's Notes on Stair, 192. y 199 Absolute- I 13G. ,,^^,1^ i^UKDENS. j ""Jsale" Conveyances. S ' "' ^'"*'' (/) Bell's Pr. 927-30, and eases cited. In particular, sec Lord Kilkerrau in Cunningham, 14th Nov. 1739, M. 4133. (m) Bell, as above. Anderson, 24th Dec. 1784, M. 4128. (n) Bell, as above. (o) Bell's Conv. of Land, 3d edit. 96-101 ; but see note lOl, fp) Bell's Pr. 923, and cases cited; Cuthbertson, 7th March 1806, M. App. Service and Confirm. 2. {q) Jur. Styles, 1. 137. (r) Fraser v. Wilson, 13th Feb. 1822, F. C. ; 1 S. 316 ; affirmed, 2 S. 162. The terms of the reservation were as follows : " But notwithstanding any infeft- " mcnt or resignation which may follow hereon in favour of the said B., it shall " be lawful to and in the power of me and my foresaids to revert to the infeft- " ment in my favour before narrated, and in virtue thereof and without any " process of declarator to establish our rights, to sell and dispose of the whole " lands and others before described." The question turned upon the nature and effect of a procuratory and instrument of resignation, the competency and effi- cacy of such a clause in a disposition and sasine being assumed.— See Ross, 2. 239. (s) Bell's Tr. 922; Com. 1. 692, et seq. See Bell's Conv. of Land, 3d edit. 103, note. (t) Stair, 2. 3. 34, and 10. 1 ; and Brodie's edit. 239, note C ; Ersk. 2. 3. 49, et seq. ; Bell's Com. 1 . 683, et seq. (it) 1661, c. 62; Stair, 2. 10. 1; Ersk. 2, 8. 37; Bell's Com. last ref. ; Ross's Cred. 30th June 1714, M. 10,243. (i-) Bell's Com. 1. 693. 137. Ground-annuals These belong to the class of real or reserved burdens ; but, as rights which are rapidly rising in importance, they deserve separate notice. 1. Introductory remarks This sort of real burden or lien, which is of the nature of a perpetual annuity, may be redeemable or absolute according to the agreement of parties. It closely resembles the feu-duty, but ditiers from it in one leading feature, that the ground-annual must appear in the sasines of the subjects charged with it. The ground-annual is a burden on heritable property of by no means modern intro- duction. It was so ancient even when Mr Erskinc wrote, that he rejects the subject as unintelligible. There are, however, several passages in our writers which throw enough of light on it to enable us to comprehend, in a general way, the con- stitution and nature of annuah. They appear to have original- ly flowed from the same source as the English rent charge, and been constituted in the form of a deed acknowledging the price, and containing the proprietor's consent to distress the tenants, or jwind the ground, for recovery of the annual duty. 200 Absolute ) 137. GKOUND-ANNUALS. J Disposition Conveyances. ) (of teale. In tenements within burgh they were styled Jcu-ajmual, ground- annual^ and top-annual, terms which are commented on by Skene, followed by Ross. In proper feudal subjects they seem to have acquired the name oi rent-charge, feu-annual, ov ground- annual, and were substantially rights of annualrent constituted without infeftment. Mr Ross conjectures that they owed their introduction to the statute said to have been passed in imita- tion of the English statute, Q^uia emptores terrarum, which, as abolishing subaltern infeftments, was the occasion of new expedients for constituting real rights over land property ; and it is a circumstance strongly corroborative of this opinion, that the conventional prohibition of sub-infeudation introdu- ced in modern grants of building ground, has been the cause of reviving the ground-annual, which, if duly protected, would be a simple and convenient mode of constituting a perpetual annuity or rent charge («). In a judicial sale, which occurred so late as the year 1762, a claim was advanced which fur- nishes a remarkable illustration of the subject. The claim was founded on a grant of a rent-charge or ground-annual to the Friars Predicators of St Monance, in the year 1477, com- pleted by possession alone, to which the College of St An- drews had acquired right ; and it was sustained by the Court as a real burden on the lands, and appointed to be inserted in the articles of the sale {h). Lord Kames, in reporting the case, observes : "It is remarkable that here is a real right " upon land, against which the records afford no security to " a purchaser." The same remark might be applied to the feu-duty, which, however, as being almost a universal burden, escapes particular notice. The two rights were originally parallel. But the rent-charge or ground-annual, being a mere isolated burden, gave place to other forms of security, whilst the feu-duty or feu-annual, being incorporated in and a condition of the original grant of the fee, has kept its place as an inherent quality of the feudal grant, and at the present day it forms the most perfect burden on heritage, as being preferable to all other real burdens, although it does not enter the instrument of sasine and the register. 2. Constitution The ground-annual is constituted by terms inserted in the dispositive clause, in the same manner 201 ^^'^■^"'"'*^ I 137. GUOUND-ANNUALS. jn-POsUion Conveyances. ) i 138. OBLIGATION TO INFEFT. j Di«poBilion ( onveyancc'8. ) ^ ^ of Sale. beiog equally adapted for divesting the disponer and invest- ing the disponee. A disposition of a bare right of supe- riority now but rarely occurs (p), unless for the purpose of investing a proprietor with the dominium directum of his own estate {q) ; and for this purpose a superior, whose right is strictly entailed, may sell the superiority to his vassal, under certain restrictions in regard to the disposal of the price (?). (2.) When a vassal conveys the dominium utile or property to his superior, he grants a procuratory of resignation ad rema- nentiam, the instrument proceeding on \vhich, when duly regis- tered, extinguishing the base fee. See Resig. ad Remanent. 6. Structure of the seller s title The nature of the title in the person of the seller occasions in practice a varia- tion in this clause in an extensive class of transactions. The charters to vassals in modern feu-rights for the purpose of l)uilding, e. fj. those by the City of Edinburgh and the Go- vernors of Heriot's Hospital, contain a prohibition against sub-infeudation, and a provision that conveyances by the vassal shall contain one manner of holding only, and that a me. The validity of such a prohibition has not yet been deliberately tried. (See § 51.) But as cautious conveyancers may deem it prudent to regulate their practice by the terms of the seller's title, it must be kept in mind by those who dread the conse- quences of inserting an alternative obligation in dispositions to property of this description, that the obligation to infeft a we .only so qualifies the precept of sasine as to make the holding public, and that a public infeftment has no effect until confirmed by the superior, in competition with parties holding complete feudal rights to the subject. Before con- firmation, therefore, the disponee incurs the risk of having the subject evicted by the diligence of the seller's creditors, which, if duly perfected by sasine, will form a mid-impediment to the confirmation of his infeftment. (See Charter of Covjirma- tion.J 7. Apportionment of feu-datij The obligation to in- feft will vary according as the feu-duty is to be wholly or only partly paid for the future by the disponee. Where the con- veyance is of part and portion of a subject, it may be stipu- lated that the purchaser shall relieve the seller of a part of 20G Absolute 1 138. OBLIGATION TO INFEFT. j Disposition Conveyances. ) ^ < oi bale. the cumulo feu-duty proportional to the value or the rental of the share of the subject sold to the disponee ; or the amount may be specified. An arrangement of this nature will be valid as in a question between the seller and purchaser, and their representatives ; but it is not binding on the superior, who may refuse to enter the purchaser, where the feu-charter contains no obligation to that effect, unless under burden of the entire feu-duty. But as superiors are naturally desirous to accommodate their vassals in such transactions, they sel- dom refuse to sanction a division of the cumulo feu-duty, if a share greatly disproportionate be not laid on that part of the subject in which an entry is demanded. (See above, § 54. 3.) (a) In WHICH LANDS and others above disponedlhereby bind and oblige myself and my foresaids to infeft and seise the said B. and his foresaids upon their own charges and expenses and that by two several infcflraents and manners of holding one thereof to be holden of me and my foresaids in free blench for payment of a penny Scots in name of blench farm at Whitsunday j-early upon the ground of the said lands if asked only and freeing and relieving us of all feu-duties and other duties and services exigible out of the said lands or others by our imme- diate lawful superiors thereof; and the other of the said infeftments to be hol- den from me and my foresaids of and under our said immediate lawful superiors in the same manner that I my predecessors and authors held hold or might have holden the same and that either by resignation or confirmation or both the one without prejudice of the other. (6) Peebles, 9th Dec. 1825, F. C, 4 S. 290. (c) M'Xair, 16th Feb. 1827, F. C, 6 S. 372. (d) Stair, 3. 2. 1 ; Ersk. 2. 7. 3 ; Bell's Princ. 881-2; More's Notes on Stair, p. 293. (e) 1661, c. 24. (Excerpt.) — And because it were most unreasonable'tbat the appearand heir when he is served and retoured lieir and infeft respective should for the full space of three years be bound up from making rights and alienations of his predecessor's estate ; and yet it being as unreasonable that he should dispone thereupon immediately or shortly after his predecessor's death in prejudice of his predecessor's creditors he having year and day to advise whether he will enter heir or not Therefore it is hereby declared that no right or disposition made by the said appearand heir in so far as may prejudge his pre- decessor's creditors shall be valid unless it be made and granted a full year after the defunct's death Bell's Com. 1. 735; Magis. of Ayr, 14th June 1780, M. 3135. (/) Keith, 14th Nov. 1792, M. 2933. Observed, that a " sasine obtained " a non hahente is altogether inept, and cannot be cured by any supervening " right in his heir." (^) Jurid. Styles, 1. 108. (A) 1695, c, 24. {Excerpt.') — Our Sovereign Lord considering the frequent frauds and disappointments that creditors do suffer upon the decease of their 207 Absolute ) 138. OBLIGATION TO INFEFT. 5 Dhposition Conveyances, i . ( oi Sale. debitors, and through the contrivance of appearand heirs in their prejudice : For remeid thereof, and also for facilitating the transmission of heritage in favours of both heirs and creditors : His Majesty with advice and consent of the Estates of Parliament statutes and okdains that if any man since the first of January 1661, have served or shall hereafter serve himself heir, or by adjudication on Lis own bond, hath since the time foresaid succeeded, or shall hereafter succeed, not to his immediate predecessor but to one remoter, as passing by his father to his goodsire, or the like, then, and in that case, he shall be liable for the debts and deeds of the person interjected, to whom he was appearand heir, and who was in the possession of the lands and estate to which he is served, for the space of three years, and that in so far as may extend to tlie value of the said lands and estate, and no further, deducing the debts already paid Ersk. 3. 8. 94; Bell's Princ. § 1929-30; Simson, 1st July 1707, M. 9807; Halkcrston, Jan. 1729, M. 9809; Burns, 4th July 1738, M. 5273, 5B. S. 361. Sec Ogilvy, 16th Dec. 1817, F. C. (0 Bell's Princ. last ref. (A) Redfearn, 7th March 1816, F. C. ; See Norton, 6th July 1813, F. C. (0 1693, c. 35. (See above, p. 100.) (»«) Jurid. Styles, 1. 108-9. (n) Jurid. Styles, 1. 145. (o) Jurid. Styles, last ref. (;j) Note in regard to old freehold votes. — A Crown vassal desirous of constitu- ting county votes under the former system, proceeded to split or divide the fee into separate fees of superiority and property as follows : Upon a procuratory of resignation granted by himself he obtained a charter of resignation in his own favour. He then executed a feu-charter for an elusory feu-duty in favour of a friend, and having thus created a subaltern right, he disponed the lands (or supe- riority) to the person who was to acquire right to the vote, assigning to him the unexecuted charter in liferent only, and under the burden of the feu-riglit. The disponer's infcftment, when perfected by a sasine duly recorded a year before the enrolment, completed the riglit to the liferent superiority, and enabled him to claim enrolment. The valued rent of the lands behoved to be L.400 Scots, or they must have been a 40s. land of old extent. (1681, c. 21. 16 Geo. IL c. 11. Another frequent mode of splitting the fee was practised when a pro- prietor selling his lands wished to retain a freehold qualification. He either granted a feu-charter to the purchaser, of lands of the requisite valued rent, and a disposition of the remainder of the estate ; or he included the whole es- tate in a disposition of sale, and qualified the conveyance with a reserved life- rent of the necessary extent — thus ; " declaring always as it is hereby expressly " provided and declared that it shall not be in the power of the said B. (the " purchaser) to execute the procuratoi-y of resignation herein after contained " nor to take from the Crown a charter of confirmation of any sasine which may " proceed on the precept of sasine also herein contained so far as respects the " said lands of C. till after the death of mo the said A." The seller thus re- mained the superior of the purchaser in these lands. Such a restriction, how- ever, would plainly have been inelTcctual against creditors or singular succes- sors, even when the disposition containing the clause was registered in the Regis- ter of Sasines. 208 Al>«f>liil.» i 1.1-, (Disposition ADsoiuic / 138. OBLIGATION TO INFEFT. ^ J Q^lo Conveyances. ) > t oi oaie. Other devices highly ingenious and very numerous wei-e employed for a simi- lar purpose. See Morrison's Diet. v. Member of Parliametit. (q) 20 Geo. II. c. 50; Jurid. Styles, 1. 147. 139. Procuratory of resignation (a) — See Charter of Resujiiation. («) And for completing the said infeftment hy resignation I hereby make and constitute and each of them jointly and severally my lawful and irrevocable procurators with full power to them to compear before my immediate lawful superiors of the lands and others above disponed, or their commissioners in their names having power to receive resignations and to grant new infeftments thereupon ; And THEKE for me and in my name to resign and surrender as I by these presents RESIGN suEKENDEK simpliciter UPGIVE ovEiiGiVE and DELIVER ALL and ■WHOLE the said lands of C (inention the leadtny names) all lying and described as aforesaid and here holden as repeated brevitatis causa with all right title and interest which I my predecessors and authors had have or could pretend there- to in the hands of my said superiors or their commissioners authorised as afore- said in favour and for new infeftment of the same to be made given and granted to the said B. and his heirs and assignees heritably and irredeemably in due and competent form ; acts instruments and documents thereupon to ask and take and generally to do every thing concerning the premises which I could have done myself or which to the office of procuratory in such cases is known to belong ratifying hereby and confirming whatever my said procurators shall lawfully do or cause to be done in the premises in virtue hereof. / 140. Clause of warrandice («) — 1. Extent of the obli- gation The warrandice in the disposition of sale is, from the nature of the transaction, absolute, and is in practice expressed; (see above, § 57.) (1.) In transactions which have been managed in the regular course of business, the obligation of warrandice can be little more than nominal, all incumbrances being cleared before delivery of the disposition ; but when a purchaser has paid the price, or even granted bond for it to a third party payable at a term certain, trusting to the seller clearing off incumbrances (b), the warrandice of the seller is his sole security in case of eviction, and that security is merely personal. (2.) When the purchaser himself transacts with a real creditor, he can have recourse under the warrandice for no more than the transacted sum (c). (3.) The obligation is not in the general case available until eviction has taken place (il), and therefore, as the disposition supersedes prior writs of a preliminary nature, such as the minute of sale («?), which usually binds the seller to clear incumbrances, it is prudent in ^^ // 200 Absolute 1 140. CLAUSE OF U'AUUANDICE. j ^7~' Lonvcyaiices. S, i. ^' bale. doubtful cases to introduce a similar clause into the disposi- tion. This obligation is sometimes imposed in a separate form by express cirrangement (/"). (4.) An obligation of warrandice is not discharged by the purchaser's delay to pro- tect himself by infcftment against a claim not made a real burden on the lands at the date of the disposition {). In this island, charters of confirmation were at an early period granted by princes, barons, and prelates as a mark of protec- tion, and by next heirs to exclude all right of challenge. 213 Absolute } 147 npi/rxr S Charter of Conveyamcs. ^ ^*'- OlilUl^. ^ Confirmation. Such deeds had thus no proper feudal character — in the sense at least in which confirmation is received in Scotland. Char- ters of confirmation for a feudal purpose appear to have been first introduced among us to mark the superior's ap- probation of, and consent to sub-infeudation, and their ef- fect was to protect the subvassals against feudal forfeitures incurred by their immediate superiors. It is said that it was not until the counterpart (c) of the English statute, Quia emptores teri^arum, was enacted, that the direct trans- mission of lands to be held of the disponer's superior was known in our law, resignation being the only mode of di- vesting the vassal in use before that period. This effect is ascribed to the supposed statute of Rob. I., by an author of much research (r/), who observes, " Our own writers " upon this subject have supposed that the statute was never " executed in Scotland : it is certain, however, that it was " executed during the remainder of that century, and it is " the genuine source of our precepts of sasine and oblige- " ments to infeft a me et de superior e meo.'' But it must be acknowledged that there is much obscurity in the orioin of the confirmation by the superior of charters or precepts a me. The form may have arisen out of the enactment in the statute of Robert III., that alienation without the previous licence of the superior should infer recognition, or the forfeiture of the feej a notion which is rendered probable by the observation of Balfour (e), that lands were saved from recognition by the superior's subsequent confirmation of the alienation. It may therefore, perhaps, be assumed, that confirmation by the su- perior, to which effects so important are now ascribed, was originally the mere expression of consent required by that statute. It is stated, indeed, by a high authority, that the superior's consent or confirmation was originally written on the back of the charter or disposition by the vassal, and that it was not until the stamp laws imposed a duty upon every deed, that the caution of conveyancers induced them to give it a separate form (/). This practice was not, however, by any means general (^7)^ In Crown holdings, the charter of confirmation was at an early period a distinct writ. Origi- nally, it made no mention of the sasine ; and after it be- 214 Absolute ? 147 r>,jTp,v 5 <"»'=>'-'<^»" "^ Conveyances, i' ^^ ' ' OHIGUN. | ConCirmaUon. came common to take infeftment prior to confirmation, a clause was introduced, declaring the confirmation to be as valid and effectual as if the charter had preceded the infeft- ment upon the deed confirmed. It is not imperative on the ' superior, by statute, to enter a disponee by the form of con- firmation, but by resignation only, although, the practice beino- uniform, it is thought that the choice of the particular mode of completing his title would be accorded to the dis- ponee, where the superior could qualify no interest to refuse confirmation. {See Modes of Entri/.) («) (Forms of Marculfus, Ijih. 1,1:^0. 31, Leges Barhar. \o\. 2, p. 211.) " Mc- " rito regalis dementia in illis conlata munera vei proprietates parentum nostro- " rum coniirmare deliberat quos cognoscit anterior um Regiun parentum nostro- '• rum vel nobis fidem integram conservasse inlesam. Idcirco inlustcr vir ille " chartas proecedentium regum nobis protulit recensendas qualiter parcntibus " suis loca aliqiia fiiissent concessa ; petiit ut eum de omni corpore facultatis " suae tarn quod regio munere ipse vel parentes sui promeruerunt quam quod " per venditionis cessionis donationis commutationisquo titulum ad prassens " juste et rationabiliter est conquisitum et ad pracsens possidere videtur per " nostrum in ipso deberemus generaliter confirmare prajceptum quod nos pro " divino intuitu vel ejus meritis compellentibus integra devotione magnitude " vestra praestitisse cognoscat Praecipientes enim ut quicquid ex suceessione *' parentum vel ejus voluntate tarn munere regio vel per quaelibet instrumenta " chartarum ad eodem juste pervenit tarn in villabus mancipiis sfidifieiis acco- " labus aurum argentum speciebus ornamentis mobile et immobile aut quod- " cunque in quibuslibet rebus per instrumenta chartarum tempore preesenti cum " rationis ordine dominare videtur per banc auctoritatem firmatus cum Dei et " nostra gratia in iutegritate hoc valeat possidere et suis posteris auctore Deo " derelinquere." (/>) (Formula; Sirmondi, No. 27, Leg. Barb. 3. 444.) " Mcrito largitatem Re- " gis mimcre sublevantur qui ab hostibus vel incendio passi sunt damna vel " violentiam Igitur fidelis noster ille clementise regni nostri suggessit eoquod ante " hos annos exercitus noster aut illius regis vel per ncgligentiam alicujus homi- " nis in loco nuncupante illo domus suiB vel res quamplures una cum strumenta ♦' chartarum tam quod retio numere pcrccperat, quam et de diversis partibus per " venditioncs donationcs cessiones commutationes adtraxcrat vel quicquid in " pago illo vel loca nuncupantia ilia possiderat incendium fuisset crematum '♦ unde relationem sub testificatione bonorum hominum cognovimus recensen- " dam omnes res suas vel strumenta chartarum periisse vel sibi sicut nobis sug- •' gessit damna sustinuisse. Prsecipientes ergo jubcmus ut quicquid memoratus " ille sicut usque nunc tam de terris domibus accolabus mancipiis libertinis vineis " pi-atis silvis aquis aquarumq. dccursibus vel reliquis quibuscunque boeneficiis " usque ad pracsens cum sequitatis ordine quietus possedit et itadeinceps injure " et dominatione ejus permaneat ct per liunc pracceptum plcnius in Dei nomine " circa eum sufTultum alque confirmatum absque uUius infjuietudinc teneat et 215 P^'""'"^*-" I 147. oiiiGiN. S^^::''"-'^ Conveyances. J ( Cynhniiation " i)ossideat suisque posteris aut cuiciuuiuc volucrit ad possidunduni derclinquat. " Quam vtTo auctoritatcm proiiria uianu subter roborare dccrevimus." (c) 2 Rob. I. c. 24. (d) Ross, 2. 257. See Ersk. 2. 7. 8. (e) Balfour, p. 485, v. Recognition, c. 10. (/) Ersk. 2. 7. 13. ((/) See (in Appendix to Report on Conveyancing, 1838,) Examination of Thomas Richardson, Esq. p. 196. 148. Introductory clause («) — 1 . Epistolary address. — (1.) The grantor of the charter is described by name and designation, such as dwelling-place and occupation, or style and title, according to his rank ; and according to the old genuine form, he addresses himself. To all and sundry to ichom these presents shall come, greetiny. But the effect of the deed is not injured by the modern commencement, " Knoio all men " hy these presents." As to the superior's title, see Charter of Reslynation. 2. Cause ofyrantiny or composition — In this clause the composition paid by the disponer for an entry is sometimes acknowledged in general terms as in the notes, but the prac- tice-is not uniform. (1.) When not restricted in the original charter, (above, § 56. 6,) the superior is entitled to a year's rent of the subject, as a composition, under certain deduc- tions. At an early period, before superiors could be compelled to receive the disponees of their vassals, a purchaser bargain- ed with the superior for an entry, and practice followed the analogy of the statutes (b), which gave him right to a year's maill as the land is set for the time as a composition for re- ceiving a creditor-appriser or adjudgcr. We accordingly find that the statute (c) which enables ordinary disponees to obtain an entry from the superior, makes mention of such fees and casualties only as he is by law entitled to receive. These, after a careful iucpiiry into the practice, were found to be a year's rent of the subjects, whether houses or lands, " deduct- " ing the feu- duties and all public burdens, and likewise all " annual burdens imposed on the lands by consent of the " superior, with all reasonable annual repairs to houses or " other perishable subjects (r/)." (2.) Where the superior is not proprietor of the tciuds, which form a distinct species of right, and belono- iu that case to the titular, the real rent suflfers a 216 fAhsolute ) ijQ X, . ,, „ .-p,,.E- r,T AiTcij 5 Charter of ,, f 14o. NAKKAIINE CLAUSE. ■{ n„„c...,>o(;^« Conveyances. > ( Conurniation. deduction of a fifth whether the temds be vakied or not (e). (3.) Salmon-fishmgs and grass lands are estimated at the me- dium rent for the last seven years, and victual rents converted at the current prices in the local markets. (Magis. of Inver- ness, M. 9300.) (4.) It is not unusual for superiors to give a deduction from the composition legally exigible. A fifth, or even a fourth part is occasionally abated ; but no precise rule of practice has been fixed. 3. JVho accounted singular successors. — (1.) It may be stated as a general rule, that with the exception of a donatar of the Crown, (1584, c. 2 ; Blair, M. 15,045 ; D. Gordon, M. 15,050,) all who present themselves to the superior in any other character than that of heir of the last investiture (/"), whether purchasers or mere gratuitous disponees, must pay the legal composition. Thus, the trust-disponees of a deceased vassal cannot demand an entry except as singular successors, even where the conveyance is partly for the benefit of the heir, and contains no powers of sale (//). (2.) It is the cha- racter of the applicant, and not the mere form of his title that is the test of the superior's right. Where a vassal conveyed the subject to his heir who sold it after the ancestor's death, and the purchaser attempted to complete a title by means of an as- signation from the seller to a charter of resignation proceed- ing upon the disposition of the deceased, the superior effectu- ally resisted this device to deprive him of the legal composi- tion. It was held by the Court that he must enter the heir by precept of dare constat, which as being personal cannot be assigned; but that he might refuse to grant a charter of resig- nation, excei)t on payment of the sum exigible from a singular successor (A). In the like circumstances, a disponee who has an object in completing a public right, must therefore offer the superior the amount of the legal casualty. See below, Art. 4. 4. Modes of exacting composition. — (I.) The superior, according to the strict principles of feudal law, cannot force a disponee to take an entry, so long as the fee is full, or in other words, during the lifetime of the vassal last entered and in- fefted (/) ; and although clauses have been invented for the purpose of introducing an artificial sort of non-entry, they have not, it is believed, been enforced in practice, and their validity has yet to be ascertained ; (above, § 51.) But so soon 217 Absolute ) 148. NAURATIVC CLAUSE. j ,5'T"^''^ as the vassal last seised in the lands by the superior dies, his heir may be required to take an entry, as the superior is en- titled to have at all times a vassal in the fee : and the rio-lit is enforced by raising an action of declaration of non-entry, which marks the precise period when the claim becomes exi- gible, andtransmirfsible against representatives, and after which the change in the defender's status- from a disponee to an heir will not atlect the claim of the snperior (h). (2.) Where, how- ever, the vassal had conveyed his right to a third party, the supe- rior may, on the disponcr's death, call on the disponee to enter. As the heir is thus not a party interested, it appears to be un- necessary to cite him in the declarator (/). It follows that the superior is not bound to recognise the heir of a vassal, who had given a conveyance to a singular successor containino- the ordinary feudal clauses, under which he may enforce an entry. Although the heir cannot be compelled by the dispo- nee to enter (?/<), he may lend himself to the disponee's pur- poses, and such attempts have been known in practice ; but as the superior is bound to enter the disponee, the latter it is thought may, on the other hand, be compelled to take an entry. The obligation ought to be mutual ; and besides to reco'mise the heir in such circumstances would enable a singular suc- cessor to evade payment of the composition during the heir's lifetime. This case differs widely from that noticed in Art. 3, where the sale is by the heir and not by the ancestor, al- though there the Court will restrict the heir to the mode of entry appropriate to that character, and interfere to jjrevent his giving a title to the purchaser, which would enable him to evade payment of the year's rent even on the heir's death. (3.) But the objection is competent only to the superior. So lono- as the disponee is unentered the superior may validly receive the heir of the disponer; but the right thus acquired by the disponer's heir is defeasible by the public infeftment of the disponee {?i). 5. Sahfiii-dutii the rent — (1.) Where lands have been subfeued, the subfeu-duty is the rent in a question with the superior, at least where it was an adequate value at the date of the subaltern grant, and he cannot demand a year's rent of houses built by the subfeuars under a lawful contract to which he is no party {o). For a like reason it is inditfe- 218 Ahsnlufo 1 1 l4o. NAKUATI\E CLAUSE. -' . ,. .. „ Conveyances. S t Conlirmalion. to enter a disponce whose autlior, who held on a personal title, was not entered, unless that author should take an entry also ; but the case has not been recogni- sed as authority. Sec Bell's Trine. 72.'i. (A) Ersk. 2. 5. 40-42; Wallace, 2d March 1836, 14 D. 399. (Z) See Mag. of Dundee, 2(ith June 1829, F. C, 7 S. 801. (m) Dundas, 10th Feb. 1769, M. 15,035. t (n) Fullcrton, 22d Nov. 1833, F. C, 12 S. 117. (o) Ross, Gth June 1815, F. C, affirmed 24th July 1820. Ip) Campbell, 28th June 1832, F. C, 10 S. 734. (7) Campbell, as above. 149. Clause of confirmation — 1. Are general terma suf- Jicient ? — By this clause («), the superior ratifies^ cqjproves and perpetuaUij conjirms the disposition and sasine, which are in correct practice identified by dates, the description of the lands, and the date of registration of the sasine. This is the desirable course to follow ; nevertheless it has been held that confirmation in general terms of all writs is eifectual {h). 2. Must the sasine he confirmed? — (I.) It seems to have been assumed in the case referred to in Art. 1, that confirma- tion in general terms, prior to infeftment, would be valid, and we learn from Dallas (c), that it was usual in his time to con- firm the disposition, " together with the precept of sasine " therein insert, and instrument of sasine following or to follow " thereupon^ (2.) But the question remains, is special con- firmation of the disposition alone feudally sufficient ? Perhaps the solution of the question may be obtained, by observing what is really essential in the act of the superior. Craig {d) observes, that " neither is the charter which is granted by " one to another," (meaning the charter a me, under the old form,) " nor the sasine which follows on it of any force, unless " confirmation is added; since he cannot rightly give sasine " who ffives it in virtue of an invalid charter ; and both must of " necessity be confirmed ; and in this clause there is a dispen- " sation loith sasine given hg him who could not legallg give it." From this it follows, perhaps, that not only was the consent of the superior required to the investiture of the new vassal, but his authority essential to legalise infeftment on a charter a me. We may hence draw a distinction between the case where sasine had not been given, and that in which it had already followed upon the charter. In the former, it may be deduced 220 CotZtZ.. I 1«- ^^^'^'^ °f CO.F,.MAT.ON. I ,^:;--:„. from the authority of Craig, that a charter or disposition a me might have been validly confirmed before infeftment, and that mention of the sasine would have been superfluous, as the warrant became thus in effect the precept or warrant of the superior himself: in the latter, it was essential to confirm likewise the sasine, and thus to validate the act of the bailie who had given infeftment on an imperfect warrant. The same inference seems in theory to be deducible from the terms of the modern confirmation ; but in practice confirmation be- fore infeftment is unknown. Still it must be admitted that the charter of confirmation does virtually nothing more than supply the consent of the superior to the transmission of the fee, and validate the precept of sasine in the vassal's disposi- tion ; an efl'ect which would in all cases have flowed from the enactment of Rob. L, had superiors failed in their pretensions to judge of its application to each individual case. (3.) The charter of confirmation being thus a mere subsidiary or sup- plemental deed, the superior cannot, by the introduction of a de prcBsentl grant, control the terms of the disposition and authorise infeftment contrary to the tenor of the disponer's precept {e). 3. Confirmation of a base infeftment — The effect of confirmation depends wholly on the terms of the obligation to infeft contained in the disposition. By these the precept of sasine is controlled, and according to the nature of that obli- gation, the infeftment is subaltern, public or indefinite. Thus the terms to infeft by one manner of holding, and that de me, if we can conceive such to be employed, would convert the disposition virtually into a feu or blench charter, according to the nature' of the reddendo. Confirmation of an infeftment proceeding on a deed of that description is now obsolete. It was employed for protecting the subvassal from forfeitures incurred by his immediate superior, (see § 91,) but not against ordinary casualties {f) . 4. Confirmation of an infefment a me — (1.) Where, again, the disposition contains an obligation for infeftment a me de superiore meo, which constitutes a public holding, confir- mation operates retro, that is, backwards to the sasine, which it thus validates from its date ; and that although the disponer or 221 Absolute J 149. CLAUSE OF CONFIRMATION. { r^'Iliy/n Conveyances, i ( Conlirmalion. disponee, or both, be dead, and tbe superiority have been acqui- red by a sinjrular successor (r/). The etiect of this retroactive operation is to validate not ordy the title confirmed, but all sul)- sequent precepts of sasine, including precepts of dare constat and procuratories of resignation, with the instruments follow- ing upon them, although prior in date to the continuation (A). (2.) The effect of an infeftment a me being thus suspended until the superior's consent, which is essential to the invest- ing a new vassal with the fee, has been given to the trans- mission, it follows that before confirmation the disponer is not divested {i). The right in the disponee is thus merely personal, and it would appear, may competently be trans- ferred to his heir by general service (/e). 5. Confirmation of infefimcnt on the indefinite 'precept. The o-eneral effect of the indefinite infeftment has been ex- plained above, (§ 96, 97.) (1.) The obligation is alternative — to infeft by two manners of holding ; one base or de me, and the other public or a me, to be completed by resignation or confirmation, or both, the one without prejudice of the other. These words were awkwardly chosen to express the mode of completing the public infeftment ; because, although resigna- tion may be resorted to when a title by confirmation has been informally completed, and vice versa, the existence of two sets of titles, one by confirmation and the other by resignation, if they are not destructive of one another, would be at least useless and anomalous. But the words have now received a technical meaning, and they ought, in all instances to be cm- ployed without deviation from the prescribed form. (2.) It is thought, however, that an obligation to infeft in general terms, would in ordinary circumstances be interpreted froiu fiivour to a bona fide disponee, to be alternative. But where one manner of holding only is expressed, and there is thus no room for doubt, a holding a me has been held to exclude the other, in circumstances of great hardship to the party (l.) (3.) Infeftment on the indefinite precept being regarded as base until confirmation, (see § 97,) the disponee is thus in the meantime protected in competition with other real rights, and confirmation has the same effect, as is explained in Art. 4. with reference to the obliuation a me. The continuation de- 222 Absolute > 149. CLAUSE OF CONFIRMATION. I ,5'''f 7^ Conveyances. ) t Lonhrmation. fines the holding, and the provisional base infcftment flics off, or is evacuated. The advantages of the indefinite infcftment are thus apparent. It protects the disponee from its date, the completion of his entry with the superior being a matter which depends on his own convenience so long as the seller is alive and the fee thus continues full ; and on obtaining a charter of confirmation, his right becomes perfect, and ac- quires the character of public from the date of the sasine. 6. Mid-impediment — (Holding a me.) — The retroac- tive efiect of confirmation (but in the case only of an infeft- ment a me, so as to produce any practical advantage to a competitor,) may be prevented by what is called a mid-im- pediment, which consists in any intermediate right by which the disponer is divested of the fee before the disponee has been invested by the validating of his infcftment. ( 1 •) A mid- impediment may be produced by a subsequent infcftment, whe- ther public or indefinite, first confirmed. This was declared by statute (m), in regard to Crown titles, but the rule holds at common law («). In a competition of rights completed by confirmation, the preference thus depends upon the dates not of the sasines, but of the completed charters of confirmation ; and where the disponer's infcftment is likewise public, but has remained unconfirmed, its confirmation will accresce to the first confirmed of two or more public infeftments proceeding on his precepts, although last in date, notwithstanding that the confirmation of the disponer's right has been obtained for the express purpose of validating another infcftment (o). It is thus of importance to fix the precise period at which con- firmation takes effect. In charters from the Crown it is the date on which the Great Seal is affixed (/?), and in those by subject-superiors, that of the delivery of the charter {q). (2.) A mid-impediment may be produced by infcftment on a se- cond conveyance by the disponer, with a base or alternative holding completed by sasine before the infcftment on the first conveyance has been validated by confirmation (r). In this instance the subsequent confirmation of the first infcftment would operate retro to the eflfcct only of perfecting a right of mid-superiority in the person of the first disponee, to whom the second disponee would thus be vassal in the property. 223 Col':t'L. \ 1 40. CLAUSE or CONr,.,„AT,OK. I ^2™I«J„. (3.) An adjiuliration duly feudalised would in similar circum- stances produce the same result, to the extent at least of ren- dering the adjudication a preferable burden on the right of property. (4.) A mid-impediment will be produced by the in- feftment of the trustee on a sequestrated estate (a). (5.) Where the heir of a disponee infeft upon a disposition a me uncon- firmed, had taken up the personal and incomplete right by general service, it was held that his discharge- and renuncia- tion of the disposition operated as a mid-impediment to pre- vent the validating of the infeftmciit by confirmation on the application of a future heir (t) ; but it is perhaps more cor- rect to say, that the heir effectually extinguished the per- sonal or incomplete right. (G.) The exception of mid-impe- diment is not pleadable by one liable in the warrandice of the first conveyance (u). 7. Mi). Hence it follows that sasine on a second resignation infavorcm is preferable to a posterior sasine on the first. (2.) The form of resignation was originally propriis manihus; but as this simple method was liable to abuse, p 226 Aic/^i.Tio t . . . ( Chartci- of Conveylnc'esj ^^^- INTRODUCTORY REMARKS. {Resignation. it was enacted (c), that when resignation was made by the vassal personally ad pcrpetuam remanentiam, the instrument of resignation should be sealed with the seal of the resigner and be subscribed by him, or if he could not write, by means of a public notary. But when the resigner had previously grant- ed an obligation to infeft the resignatary, it was the opinion of Stair that the seal and subscription of the party to the in- strument were unnecessary, although it bore that the ceremony was performed /)ro/)?-m manibus (d). By the same statute, pro- curatories of resignation ad remanentiam were appointed to be sealed and subscribed in the same manner as instruments of resignation propriis manibus ; and procuratories infavorem be- came subject to the like rules. (3.) Procuratories infavorem are derived by Craig and Ross (e) from the procurationes ad resifjnandum infavorem, employed by churchmen in transmit- tine- riffhts to benefices ; and according to the latter author, they are the " most habile, simple and complete mode of trans- " mission of land property." The instrument of resignation infavorem taken upon the fact was originally of use as evidence of tbe superior's acceptance of the resignation, and to ground proceedings for compelling him to invest the resignatary ; but it is now obsolete in ordinary practice ; and in completing a Crown title, although the act or ceremony of resignation be still performed, an instrument is but rarely extended. (4.) The possession of a procuratory of resignation conferring a right on the disponee to enforce an entry with the superior (/), forms the immediate warrant of the charter of resignation, the ceremony, although still described in the charter, being purely imaginary. Hence it follows that a procuratory of resignation is a valid deed of transmission {g) ; and it is com- mon in practice to frame deeds of entail in this form. Care ouffht to be taken to use the words of style, as the omission even of such terms as can be supplied by the context may give rise to vexatious questions {h). 2. Title of the superior (1.) The rule is strictly en- forced in practice, that the superior's title shall be completed before the vassal accepts a charter by progress or a precept of dare constat. The question, whether a grant by progress a nan habente potestatem, by a superior holding a personal right, 227 Ahsoluto ) j5^^ INTUODUCTOKV UEMAIIKS. j Charter of Conveyances. ) ( Jtesignation. is absolutely null, or capable of being validated by the sub- sequent infeftment of the superior, docs not appear to have as yet been deliberately discussed, and a situation which might give rise to it is not of probable occurrence. A party is by no means likely to conclude a transaction so loosely as to ac- cept of a charter from a superior who has not in his own per- son a feudal title to the lands. It might occasionally happen, however, to be convenient for an heir or a creditor to obtain a precept of dare constat or a charter of adjudication without waiting for the superior's infeftment. (2.) Although a supe- rior is bound, under a severe sanction, to enter with the over- superior in order that he may be enabled to grant a valid en- try to the vassal (/), it does not appear to be in express terms laid down by any author that the maxim, Jus superveniens auctori accrescit siiccesso7'i, would fail in the case supposed. That maxim, as founded on the obligation of warrandice, although originally applied to supervenient rights, has since the time of Stair been extended to supervenient titles, for he alludes to it merely as a common opinion, that the subsequent infeftment of the grantor of a disposition w^ould accresce to the infeftment of the disponee {It). This extension appears accordingly to have been with difficulty admitted (/) ; but the principle was afterwards applied to double rights, to the effect of validating the first completed infeftment, upon the fiction that the disponer's title, when perfected, drew back to the in- feftment first in date, provided that the right had not in the meantime been carried off by the diligence of creditors, or, if personal, conveyed to and feudiilised by another disponee (?/?). To have admitted the application of the maxim in any circum- stances to an originally invalid infeftment implies a disregard of the feudal rule, that none can give a warrant for investing another with a fee but a party who is himself feudally invest- ed, when opposed to the equitable principle founded upon the obligation of warrandice ; and if it is admitted that the opera- tion of that principle may supersede the feudal rules in one instance, there seems nothing to prevent its extension to other cases which substantially fall within its scope. Confirmation and resignation are forms not more exclusively confined to a feudalised superiority by the notions of the older feudist?, V 2 228 Absolute Conveyances, ^ , „ . C Charter of ^ 154. INTRODUCTORY REMARKS. | Resignation. than infeftment ; and indeed, in an early case, it seems not to have been doubted that where warrandice operated, the prin- ciple would apply to a charter by progress ; and it appears to have been assumed in a later instance, that a charter of con- firmation was capable of being validated J? 158. PRECEPT OF SASINE. j ,f it'n'Jin! Conveyances. ) ( Ivesignation. 158. Precept of sasine. — Reference is made to § G2. 159.. Instrument of sasine. — 1. Form. — By the statute of 1693 («), it is provided that procuratories of resignation, as well as precepts of sasine, may be executed after the death of the parties in whose favour they are made, or their authors, provided the instruments of rcs/'r/nation and susincs taken after the death of cither i)art\j express the titles of those in whose favour the resignation is made, and to whom the sasine is grant- ed, and that the same he deduced therein ; otherioise to be void and nidi. As it is probable that the statute was intended to refer to instruments of resignation ad remanentiam only, since those infavorem do not enter the register of sasines, it might perhaps be maintained that the enactment comprehends in- struments of sasine upon charters of resignation, as instru- ments virtually authorised by and proceeding upon the pro- curatories which warrant the charters. The object of the Leo-islature may, indeed, be presumed to have been a con- nected series of deeds entering the register, from which third parties could discover the course of titles by which heritage had been transmitted from one proprietor to another ; but, as the enactment is penal, it will not perhaps be extended beyond its strict letter, which does not mention the sasines in question. It seems, however, an advisable precaution to transfer the qucBquidem of the charter to the instrument of sasine, in the circumstances to which the statute applies. 2. Effects of sasine upon the charter — Infeftment upon the charter of resignation makes the purchaser the vassal of the seller's superior, his right being subject however to all the burdens with which it was charged prior to the resigna- tion (Z»). A title completed by disposition, charter of resig- nation and sasine, (provided infeftment has not been taken on the precept in the disposition,) is therefore equivalent to that made up by disposition, sasine and charter of confirma- tion, with this only diticrence in favour of the former method, that the charter of resignation and sasine form a good pre- scriptive title ; an advantage which the sasine and charter of confirmation do not possess without the disposition. It nmst, however, be conceded, that the security obtained b\ imrae- 234 Absolute > j-fj^ INSTRUMENT OF SASINE. \ Charter of Conveyances. ^ ( Resignation. diate infeftment on the indefinite precept in the disposition far more than counterbalances any advantage which may be supposed to attend the greater simplicity or feudal propriety of the form by resignation ; whence it has resulted, that the entry by resignation is comparatively rare in practice. (a) 1693, c. 35; above, p. 100. lb) Ersk. 2. 7. 21. TITLE XI. UNION OF RESIGNATION AND CONFIR- MATION. 160. Combination of the two charters. — (1.) It fol- lows, from the nature and effect of infeftment upon the inde- finite precept, which makes the purchaser in the meantime vassal to the seller, that he may convey to a third party, so as to authorise infeftment which is immediately valid, be- fore he has himself entered with the seller's superior. Such transmissions may proceed without limit, each future disponee being the vassal of his immediate author. From the doctrine of confirmation it is plain, however, that all these infeftments may be made public, and this is effected in practice by a single charter. The fiction of law is, that the first infeftment be- comes by the confirmation public from the date of the sasine, and validates the double precept in the second disposition, and so on through the course of conveyances. (2.) Where such transmissions have occurred, the last disponee, if he have not taken infeftment, may complete his title by means of a combination of the charters of confirmation and resignation. Upon the principle now explained, the confirmation of any number of indefinite infeftments makes the rights public from the dates of the several sasines, and the resignation proceeds upon the procuratory in the last disposition of the series, on which, by the supposition infeftment has not been given, that procuratory being validated by the character of public con- ferred by the confirmation on the immediately preceding in- feftment (a). (3.) It is obvious that the same result would follow were the several rights not indefinite, but a ine, from the commencement. (4.) On the other hand, were the seve- ral precepts de me only, the rights must continue base, so many 235 Al)soluto ) 1 /»A .. ^»r „^ ,«»,.,..,., •■..T^ n-r.o.^, ( Confinnalion and Absoluto ) 100. UNION OF CONFIRM. AND RESIG. S^"f"" Conveyances. \ I licbig nation. separate fees being created as there are dispositions and sa^- sines, sellers and purchasers. This last case is given merely for the sake of illustration. Disposition is not the ordinary form of constituting subaltern rights. («) Bell's Conv. 294. TITLE XII. CONSOLIDATION. 16 1. Meaning of the term — In the cases supposed in § 160, with the exception of the last, there is no fee perma- nently constituted, the base-holding, created provisionally by infeftment on the indefinite precept, being evacuated by sub- sequent confirmation. But a variety of situations may occur where the property and superiority have been permanently disjoined, although the great source of such separations, the constitution of freehold votes, no longer exists. For example, a vassal may acquire the superiority, or a superior the pro- perty, by purchase, succession or adjudication for debt ; or a base fee may be constituted through mistake, by inserting an obligation to infeft de me only in a disposition of sale. In these cases the two fees will remain divided until formally united or consolidated by means of resignation ad remanen- tiam. 162. Old doctrine The necessity for consolidation by express deed did not always exist. At an early period of the feudal law, fees were, with little ceremony, renounced or re- signed by the vassal, and became thereupon incorporated with the more eminent right of superiority. In the course of time, the notion was received, that a fee could only be restored by the vassal to his superior, and consolidated with the supe- riority by a formal instrument of resignation ad remanentiam. Resignation of this kind, as we learn from Craig (r/), was made in the hands of the superior, " in solius domini fuvorem " et commodurn nt feudi proprietas integra ad dominum redeat " et ad perpctunm rcmnncat, sic lit doiiiinivm utile cum directo " consolidctur.^' We find, accordingly, that no difficulty arose when the vassal acquired the superiority, or the property 236 Absolute 1 102. OLD DOCTRINE. j Consolidation. Conveyances. > L came to the superior directly from the vassal. Both com- pleted their titles to the midivided fee by resignation ad re- manentiam. Thus, Lord Stair observes, that if the vassal become heir or singular successor to the superior, he might, on beino- infeft in the superiority, " resign to himself as su- *' perior ad remanentiam (i)." It was only when the superior acquired the dominium utile, by succession or adjudication, that the necessity arose for holding that the subaltern fee was ipso jure incorporated with the more eminent, because, in neither of these cases could a party, in accordance with the notions prevalent at the time, give warrant for his own infeft- ment (c). But when the uses of the registers became more apparent, it was seen that a fee v/hich had left its traces on the record, could not be extinguished by the mere fact of the superior obtaining an incomplete right to it ; e. g. by service as heir in special to the vassal when he acquired the property by succession, and thereupon obtaining a decree of declarator of consolidation. It thus came gradually to be held, that in order to the consolidation of the two fees, the superior must be infeft in both, and it was at length determined that he might f^rant precepts for his own infeftment (d). Thus, the domi- nium utile, which, according to the prevailing notions, was a mere burden on the right of superiority, seems to have been considered as extinguished confusione. («) Craig, 3. 1. 6. (h) Stair, 2. 11. 8. (c) B. supplicant, 21st June 1634, M. 691V ; Elios, 23d July 1687, M. 3086; Stair, as above; Dirleton and Stewart, v. Consolidation. (d) Morton, 26th Nov. 1668, M. 6917 ; Stair, as above; Porteous v. Bell, 28th Feb. 1757, noticed in Bell's Conv. p. 328; Dallas, p. 567 ; also, 888-9, where a curious example is given of consolidation by means of a service. 163. Modern DOCTRINE — (1.) The notion of consolida- tion by the superior's infeftment in the two fees became in- convenient in practice. Thus, a superior might acquire right to his vassal's fee, by a destination diflcrent from that which regulated the superiority, so that on his death, the property and superiority might, consistently with the doctrine of co7i- fusio («), have come to be again divided. And unless it had been held that a separation would in certain circumstances 237 Absohile 7 1G3. MODERN DOCTRINE. j Consolidalioii. Conveyances. \ L take place, a strict entail must have been evacuated, when the right to entailed lands fell by succession to a superior who possessed the superiority in fee-simple. (2.) But the modern doctrine was received by slow degrees. It was probably in- fluenced by the doubts thrown out by Dirletcn, and the oppo- sing opinions of Stewart (/>), with regard to the ipso jure ef- fect of consolidation on the one hand, and the best mode of practically meeting the difficulties of particular cases on the other. At the same time, the sanction by the Court of the superior's exercise of the power of infefting himself opened the best and most simple course for solving all difficulties, and the analogy of the mode of consolidation, when the superior acquired a right directly from the vassal, could not be over- looked. Conveyancers came thus to entertain the opinion, that the two fees of property and superiority were distinct estates, and practice alone seems to have introduced resignation ad remanentiam as the valid mode of effecting consolidation. And the Court, on the question occurring for their decision, gave their concurrence in the views of the profession (c). (a) See Ersk. 3. 4. 27. (/)) Dirleton and Stewart, voce Consolidation. (f) Bald, 8tli March 1786, M, 15,084, affirmed on ap. 164. Exceptions. — 1. By prescription — An exception to the general rule is founded on the effect of the positive pre- scription. The title to the superiority being a good pre- scriptive title to the lands (§ 124,) possession for forty years excludes the right of the vassal. Consolidation by prescrip- tion takes place even where the two fees are in one person {a). 2. liifjlit in trust. — It may perhaps be doubted if a subaltern fee, constituted in the form of a trust conveyance, requires resignation ad remanentiam for its extinction. Where the reversion is not conveyed to another, the feudal title is held to remain in the person of the truster, even as regards the property, which is not only adjudgeable by creditors, but capable of being settled by deed of entail. The trust right may therefore perhaps be considered as a mere burden on the radical infeftment in the person of the truster (A). 3. liesignaiion ajler infeffmcnt on indijinitc jn'cccpt. — r 238 ^^*«'"*'' I 164. EXCEPTIONS. 5 Consolidation. Conveyances. ^ t The late Mr Bell (c) adduces a supposed exception, which, if admitted, would produce the most important effects, by not only destroying the security of the indefinite infeftment, but extino-uishing a real right without any operation which would appear on the register. He maintains in substance that resig- nation on the procuratory in the disposition of sale, after in- feftment on the indefinite precept in the same deed, evacuates the base fee created provisionally by such infeftment, in like manner as is done by confirmation. This notion is found- ed on an observation of Stair's (d), that where a purchaser has taken infeftment on a precept to be holden of the dis- poner, " so soon as he obtains infeftment from the disponer's " superior, the infeftment holden of the disponer becomes " void, seeing the some fee cannot at the same time he holden " of different superiors." These concluding words solve the whole difficulty. At the period when that opinion was ex- pressed, the doctrine of ipso jure consolidation prevented the co-existence of two fees in one and the same individual. But to admit the notion in modern conveyancing would have the effect of enabling a seller to defeat the indefinite infeftment of the purchaser at any time prior to confirmation, by granting a procuratory of resignation to a second disponee, the right thus produced, when completed by charter and sasine, evacuating or rendering void the provisional base infeftment in the person of the first disponee, for to consider this result if truly flowing* from resignation to be limited to resignation by the first dis- ponee, would be contrary to all principle. The effects of confirmation and resignation in completing the title of a dis- ponee essentially differ. Infeftment on the indefinite precept is alternative ; the disponee may render it public at his plea- sure ; and being alternative, it follows, that when made public by confirmation, the base fee is necessarily evacuated, unless there has been a mid-impediment to prevent the effect of the confirmation. And accordingly it has never been doubted, that such mid-impediment leaves unaffected the base infeft- ment in the person of the first disponee. The notion of Mr Bell seems therefore to be contrary to feudal principle, and it has received no countenance from practice. The de- cided cases, so far as they go, are to the same purport. Thus, 239 Absolute I 1G4. EXCEPTIONS. 5 Consolidalion. Conveyances. ) I where a party had expede the anomalous title of a charter of rcsifmation and confirmation, after infeftment on the indefi- nite precept on the kist of a series of dispositions, it was not considered that the base fee was evacuated, although it was held that the resignation, as perfected by the act of resign- ing, was the ruling branch of the charter, and carried right to the superiority. On the contrary, it was in one instance observed, that the resignation was not inconsistent with confir- mation of the prior infeftment on the disposition, as a base right {e). It appears, indeed, that a base fee may be pro- duced by infeftment on the indefinite precept, even afier a charter of resignation has passed upon the procuratory in the same disposition, if taken before infeftment on the charter, and that it will subsist after such infeftment until extinguish- ed by resignation ad remanentiam (f). (a) Grieve v. "Walker, 27th Feb. 1827, F. C, 5 S. 469. This case was deci- ded upon the authority of Bruce Carstairs, 6th Dec. 1770, M. 10,805 ; — but the latter appears to have been determined upon the express ground, that the property being lickl on a limited title, was worked off by possession for forty years upon the title to the superiority, which was unlimited ; a rule well recognised where the titles are of that distinct nature, but rejected when they are both unlimited ; (see Zuille, 4th March 1813, F. C, which contains all the authorities.) Nor can the subaltern right be held to be extinguished by the negative prescription, as it is a right of property and not a mere burden. If the effect is therefore to be imputed to the operation of the positive prescription, it would follow that the rule, in cases of two unlimited titles, deserves reconsideration, as it is diffi- cult to perceive any real distinction between such cases and the case of Grieve ;— Elibank, 21st Nov. 1833, F. C, 12 S. 74; Bontine, 2d March 1837, 13 D. 711. (6) Macmillan, 4th March 1831, F. C, 9 S. 551 ; affirmed, 28th June 1832. (c) Bell's Conv. 344, 3d edit. ; but see note. (d) Stair, App. § 1. See Brodie's edit. p. 833. (e) Campbell, 4th Jan. 1754, 5B. S. 809 ; Stewart, 20th Feb. 1827, F. C, (p. 368 of vol.) 5 S. 383. (/) See Grant, 22d Feb. 1760. M. 8740. There is here a remarkable example of the creation and after-extinction of a base fee for the purpose of splitting the property and superiority, and creating a vote under the old system of voting. TITLE XIII MODES OF ENTRY. 1G5. Seller enteked — The nature and effect of the feudal forms of resignation and confirmation may be illustrated 240 Absolute > 1G5. SELLER ENTERED. j Mo.les of Conveyances, } ( Entry. by some practical examples of their application. In this, the simplest of cases, the seller grants a disposition in the ordi- nary form, on which the purchaser may complete his title by infeftment on the indefinite precept, followed by charter of confirmation ; or by charter of resignation and sasine. The former method is that employed by all conveyancers who study the absolute security of their employers, and is consequently the form most general in practice. 166. Seller infeft, but not entered. — When the seller's title stands on a sasine proceeding on a disposition of sale, unconfirmed by the superior, he grants to the purchaser a disposition of the usual tenor. In this shape of the title, the purchaser may enter in either of two modes, viz. by infeft- ment followed by charter of confirmation of the two disposi- tions and sasines ; or by a combination of confirmation and resio-nation, and sasine on the charter. In the former case, confirmation completes the title. In the latter, confirmation is granted of the seller's infeftment ; and the resignation pro- ceeds on the procuratory (not in the disposition in favour of the seller, but) in the disposition by the seller to the purcha- ser, which is held to be validated by the confirmation making the seller's own infeftment public from its date. The title is thus completed by sasine on the charter, which, as being a charter of resignation as well as confirmation, contains a pre- cept for that purpose. 167. Seller not infeft. — (1.) But if the seller's right is personal, that is, if he holds a disposition with precept and procuratory unexecuted, he will, in his disposition to the purchaser, assign that disposition with its feudal clauses, and the purchaser will proceed as in § 165, care being taken to deduce the title in the instrument of sasine when either the seller or his author has died before infeftment. In that event the deduction is essential (a), but in all cases it is customary. (2.) With reference to this state of the seller's title, the important question occurs, what right an assignation by one having a personal right only confers on the assignee. It has now for a century been settled {b), that ,/*'^°'"''' I 1G7. SELLER NOT INFEFT. j Mode, of ConveyaiK'CS. ) I Entry. the assignee's right is defeasible until completed by infeftment, and may be excluded or rendered void by a second assigna- tion, or by adjudication led against the cedent follow ed by the first infeftment. This determination took place in a compe- tition between the assignee to a decree of sale, who had de- layed his infeftment, and an adjudger from the cedent whose adjudication was first made real by sasine, the Court, after very full discussion, disregarding the authority of prior cases (c), and ])referring the adjudger. The reasoning on the part of the successful competitor is conclusive, and shews with much force the dangers that would beset our land-rights were the first conveyance of a personal right, itself remaining personal, to denude the cedent, without leaving any trace by which it could be discovered from the registers. (a) 1693, c. 35. Sec above, p. 100. (t) Bell, 22d June 1737, M. 2848, Elcli. v. Competition, 3. (c) Rule, Hth Dec. 1710, M. 2844; Erskine, 9tli Dec. 1710, M. 2846. 1G8. Purchaser dying uninfeft It may happen that the purchaser dies without taking infeftment on the disposi- tion. His heir, after taking up the personal right by gene- ral service, will proceed as in § 1G5, taking care to narrate the service in his sasine. IGl). Purchaser dying unentered. — (1.) When, how- ever, the luuxhaser has died after taking infeftment on the disposition, but without having entered with the superior, his heir may complete a title by charter of confirmation and pre- cept of dare constat, if the holding is of a subject-superior; the confirmation rendering public his ancestor's infeftment, and the precept warranting the heir's infeftment in that cha- racter. (See Precej)t of Clare Constat.) (2.) But where the Sovereign is superior, since the Crown officers can only act upon the evidence of a service, the mode of procedure is dif- ferent. The heir must in these circumstances take up, by ge- neral service, the unexecuted procuratory of resignation in the disposition on which the ancestor was infeft, and thereupon obtain a charter of resignation, the sasine on which, by eva- cuating the mid-fee which remained in the person of the granter of the disposition, will make the heir vassal of the 242 Absolute ) 169. PURCHASER DYING UNENTERED. Vvtfrf Conveyances. 3 ( ^ntry. Crown in a mid-superiority, and superior of the base fee con- stituted by the ancestor's infeftraent. In order to complete the title, he will then grant a precept of clave constat in his own favour, as heir to the deceased in the base right, after infeftment on which he will resign in his own hands ad rema- nentiam^ and thus consolidate the two fees. (3.) The late Mr Bell (a) suggests another method of completing the title, viz. by obtaining a charter of confirmation of the ancestor's infeftment, and thereafter serving in special to him, and tak- ing infeftment on a Crown precept. This form, it is believed, is now unknown in practice, and it has been objected to on principle (h), but, as it humbly appears to the author, without just grounds. It has been maintained, j^r^^, that confirmation cannot competently be granted unless to a party alive. But, it will be observed, that by a charter of confirmation there is no conveyance made to any party as disponee ; a mere rati- fication is granted of an antecedent step in the progress of titles. It has accordingly been held, (above, § 149. 4,) that confirmation may validly be granted of the infeftment of a party deceased ; and it is plainly immaterial in point of prin- ciple, whether it be so granted in a charter which likewise con- firms an infeftment taken by the person applying for the con- firmation, as is done in the daily practice of conveyancers, or in a separate form. It will be observed, moreover, that con- firmation is given not merely to, but likewise in favour of a party ; and there appears to be nothing incongruous in granting confirmation, in favour of an heir, of his ancestor's infeftment. It has been maintained, secondly, that an heir cannot obtain a Crown charter without service. This is, perhaps, the more formidable objection of the two ; but it is competent only to the officers of the Crown, and does not affect the principle. It is, however, undoubted, that the Crown officers were, at a period not far distant, in the practice of passing such char- ters ; and in one instance, an infeftment confirmed after the ancestor's death was sustained as a good title for the enrol- ment of the heir as a freehold-voter on his right of appa- rency {c). (d) Bell's Conv. 3d edit, 360. (b) Note by editor of third edition of Bell's Conv. p. 360. (c) Macdowall, 19th J.tn. 1793, M. 8807. 2J:5 Absolute 1 170. SUPERIOR ACQUIRING THE PROPEUTY. S^^'"^;""^ 170. Superior acquiring the property. — A superior may ac({Liii'C tlic dominium utile by purchase or succession. (I.) If by purchase, lie receives from tlie vassal a procura- tory of resignation ad remanentiam, the instrument on which, when duly registered in the register of sasincs, effects the con- solidation of the two fees by extinguishing the right of pro- perty. (2.) When, on the other hand, the property is acquired by succession, the superior grants a precept of dare constat to himself as heir to the vassal deceased ; and, after completing bis entry as such by sasine, he executes in his own favour a procuratory for resignation ad remanentiam, v.hich is com- pleted as above. See Besig. ad Rem. 171. Vassal acquiring the superiority. — When the vassal purchases or succeeds to the dominium directum, he will proceed as follows: (1.) If he acquires by purchase, he will obtain a disposition framed as above mentioned, (§ 138. 5,) which, although usually containing but one manner of holding, and that a me, may, it is thought, be validly expressed alternatively. He will then complete his title to the supe- riority by confirmation or resignation, as in § 1G5, and being thus proprietor or dominus of both fees, consolidation will be effected as in § 170. (2.) If, again, he acquires by succession to a party entered, the title will be completed, in a Crown holding, by special service, precept from Chancery and sasine, and in a subaltern holding, by precept of dare constat and sasine ; but if to one having a personal right only, the title will be completed as in § 168. Finally, the two fees will be consolidated by resignation ad remanentiam. 172. Seller in apparency — ( 1 .) When a seller possesses as an hcir-aj)parcnt, ho may competently grant a disposition to a purchaser, on which the latter may immediately make up a title, and the title of the heir, when perfected, will accresce to it; (§ 138. 2.) This accretion cannot be impeded by any device on the part of a future disponee, provided the title of the heir is completed during his lifetime, even although it should be expcdod by a competitor for the purpose of valida- ting a second or subsequent infoftmcut. The heir's infeftmeut Q 2 244 Absolute J 172. SELLEll IN APPARENCY. j Modes of Conveyances. ) ( iiiitry. draws back, jictione juris, to the right first completed, and consequently to that on which the first sasine is registered («). (2.) But adjudication will form an impediment to accretion, since thereby the right of the heir is excluded ; and a title in his person, completed after the adjudication is duly feudalised, will be burdened with the adjudger's debt, since the construc- tive title produced by a charge against the heir to enter, which is disobeyed, can operate only for behoof of the adjudger, as infeftment of the heir does not take place. (See Adjudica- cation contra liareditatem jacenten^.) (a) Alison, 28tli Feb. 1708, M. 7773; Paterson, 10th Dec. 1742, M. - 7775; Henderson, 5th July 1821, F. C. 173. Cases of defective or intricate titles The instances which have been given in the preceding sections are of frequent occurrence, and readily present themselves to those acquainted in some degree with the theory of conveyancing. They are more fitted, therefore, for the student than the prac- titioner. In order the more fully to perceive the effect of con- firmation and of resignation infavorem and ad remanentiam, it is necessary to assume situations in which the state of the title has become deranged, and requires a remedy, before or after granting a disposition. 1 . llesignatlon on the icronrj procuratory — Put the case that a disponee has acquired his right from one infeft, but unentered, and that in place of also taking infeftment on his author's disposition, and obtaining confirmation of both dispo- sitions and sasines, or confirming his author's infeftment, and resigning on the second procuratory, (§ 166,) he has, by mis- take, obtained and been infefted on a charter of resignation, in virtue, not of the procuratory in the disposition in his own favour, but of that in the disposition on which his author had already been infefted, as having right to it by assignation. By this means, the base fee constituted by his author's infeftment is left behind, the disponee being his author's superior in that fee. In order to extricate the title, the disponee will take infeft- ment on the indefinite precept in the disposition in his own fa- vour, whereby he will bold base of his author, who will thus be in right of a mid-fee between the two fees held by the disponee. 245 Ahsolulo I J -3^ ^^^^^ ^^ DEFECTIVE TITLES. \ ^If"' °^ ( onvcyances. ) ( Entry. By confirming the infeftment thus taken in his own favour, the clisj)onec will evacuate the mid-fee; and as he will thus hold hase of himself, he may consolidate the two fees by resipfnation ad remanentiam. 2. Erroneous combination of the charters of confirmation and resi(jnation — (I.) In the situation assumed in Art. 1, let it be supposed that the disponee, having already taken infeft- ment on the disposition by his author, is desirous of completing his title, and that he obtains a charter of confirmation and re- signation, confirming both iiifeftments, and proceeding upon the procuratory in the second disposition, on which charter infeftment has been completed. The question arises, which of the two rights is the preferable; — that by resignation, or the other by confirmation ? In an election case (a) it was decided that they did not mutually destroy one another, since the words of the obligation to infeft authorise entry by resignation or confirmation, or both, the one without prejudice of the other, and that the preference was to be given to the resignation as first in order, the ceremony of resignation preceding the au- thentication of the charter, and forming an obligation on the superior to do nothing in prejudice of that right. The con- firmation was thus held to be inept, or at best a confirmation of a subaltern holding, which, in modern practice, is obso- lete ; and there was authority for the view thus taken by the Court in a prior case of the same nature {b). In neither in- stance was there a competition of real rights. The effect of these decisions seems only to have been, that a party claim- ing a right to vote on a superiority might, in the absence of any competing title, ascribe his right to the resignation ; and it may perhaps be assumed, without any impeachment of the grounds of decision, that had the party founded on the con- firmation, the title, as a mere title to claim enrolment as a freeholder, would have been in like manner sustained. This, indeed, seems to have been admitted in the argument. (2.) But if it be assumed that the rights are in different persons, the rules of determination will necessarily vary. Thus, let it be su])poscd that A. grants a disposition to B. and a dis- position to C, each containing an alternative obligation to infeft, and a procuratory of resignation ; that B. takes in- 24G Absolute 1 173. CASES OF DEFECTIVE TITLES. J Modes of Conveyances. 3 t liiutry. feftment on the indefinite precept in the conveyance in his favour, and C. on the other hand proceeds by resignation ; and that a charter of confirmation in favour of B. is obtained prioj' to the completion of C.'s infeftment on a charter of re- signation, but ajier the act of resignation has taken place in the hands of the superior. There seems to be no authority for holding that, in such circumstances, the title by resigna- tion would exclude that by confirmation. (3.) It may perhaps be doubted, if, on feudal principles, a title in the form made up in the case of Stewart ought, even where there is no com- petitor, to be ascribed to the resignation in preference to the confirmation (c) ; and it is assumed in practice, that in the union of the charters of resignation and confirmation, the preference is given to the confirmation, for it is held to validate the pro- curatory on which the resignation is made. But it seems to be supposed, that to ascribe the title to either resignation or confirmation, in the option of the party, is not inconsistent with feudal principle, while it accords with the terms of the obligation to infeft. It is plain, however, that resignation in the situation of the title assumed at the commencement of this article is at least superfluous. If the resignation were held to supersede the confirmation, then it is manifest that a base fee remains, which must be extinguished by resignation ad remanentiam ; and this is perhaps the safe course to follow. 3. Intricate case of sjiUtting Put the case that, for a particular object, B., the disponee, has obtained a charter of resignation on the procuratory in the disposition granted by A., the seller, and, without taking infeftment on the char- ter, has executed the precept in the disposition ; that, in the next place, he grants a subaltern feu or blench right to C. ; and finally, that he completes an infeftment on the charter of resignation. B. then re-acquires the property by purchase from C, and is desirous of re-uniting it with the superiority vested in himself in virtue of the charter and sasine. Accord- ing to the doctrine explained at § 164. 3, infeftment on the charter of resignation did not evacuate the base right which was constituted by B.'s infeftment on the disposition; that base rio-ht forms a mid-fee between the superiority and tlie sub- altern grant in the person of C. There are thus three fees in 247 Absolute ) 173^ ^^yj.y ^^^. ijEl-KCTlVE TITLES. j ^1?^' "^ Conveyances, j ^ L.iitry. existence — one of superiority in the person of B., the second of mid-superiority in his person, and the third a subaltern fee in the person of C. But as the mid-superiority, from its na- ture, cannot be evacuated by B.'s own confirmation, and the subaltern right, as proceeding- on a grant de me, is incapable of being made public by confirmation, the title will be best extricated by a double process of consolidation, viz. by B. resigning the mid-fee in his own hands as superior, and then resigning in his own hands on the procuratory of C, the vas- sal in the feu or blench right, both ad remanentiam. 4. Defective obligation to infejl — Cases of difficulty may arise from errors in framing the obligation to iufeft. (1.) If, in place of being alternative, it contain a base-holding only, and that, on a disposition of this description. A., the seller, has been infeft, B., the purchaser, may with safety accept of a conveyance from A., containing an alternative obligation to infeft, and an assignation to the procuratory of resignation in the disposition in favour of A. ; for, by taking immediate in- feftment, his title to the property will be secure, and, by exe- cuting the procuratory, he may acquire a title to the supe- riority. The mid-fee thus left in the person of A. will, as above, (Art. 1,) be evacuated by B.'s own confirmation of his infeftment on A.'s disposition, which, as proceeding on an indefinite precept, is capable of being made pubhc by confir- mation ; and consolidation will be effected by resignation ad remanentiam. (2.) Where, on the other hand, the obligation to infeft in the disposition in favour of A., the seller, is a me only, and thus imports a public holding, it is plain that the purchaser would not be safe in accepting a disposition from A. until his own title had been validated by confirmation ; (§ 149. 4, 6.) 5. Effect ofsiijyeriors refusal to confirm. — It is a ques- tion of much importance in modern conveyancing if the supe- rior may refuse to enter a dispouee by confirmation. (1.) In the ordinary case, the superior can have no interest to prevent disponees from completing their titles as they deem most ex- pedient ; but cases may occur with reference to the restraining clauses now generally introduced in feu-rights of building ground, where the superior's right to enforce these clauses by 248 Absolute 1 J .3^ ^^^^ DEFECTIVE TITLES. ] ^^^'^'if Coiiveyauces. y t Kntry. direct methods might be questionable. For example, (above, § 51,) it has been doubted if a direct prohibition against sub- infeudation be eftectual against singular successors. It seems at first view startling, that a prohibition of that nature should be capable of being enforced by a refusal of confirmation. The operation is indirect ; but for the superior's purpose it would be most effectual ; that purpose being to enforce the entry of purchasers. If the prohibition shall be found effectual, the consequence will be, that a purchaser from the vassal cannot accept of a disposition with an alternative holding, as imply- ing a base-holding until confirmation, but must be satisfied with a holding a me, and to take an immediate entry from the superior in order to validate his infeftment. If, on the other hand, the vassal cannot, consistently with the terras of the statute abolishing clauses de non alienando, be prohibited from granting precepts de se, and a purchaser from him may com- petently take infeftment on the indefinite precept in the dis- position of sale, the superior's only resource consists in refu- sing confirmation. Such refusal, it will be observed, cannot affect the purchaser's right to the property, which is completed by the infeftment on the indefinite precept ; but the incon- venience and expense of an entry by resignation, and the sub- sequent steps for consolidiiting the two fees, would be con- siderable. (2.) WTiere the superior has thus an interest to refuse confirmation, as there is no legal form of enforcing an entry by that method, it is probable that, in an action of non- entry, the defence, that the purchaser was willing to take a charter of confirmation, would be repelled. If by such a course a superior can indirectly enforce clauses which he thinks for his advantage, purchasers have no ground of complaint, since the terms of the original grant ^)oint out to them those restric- tions for which the superior has stipulated. (3.) The supe- rior's refusal of confirmation would thus render necessary an entry by resignation, and the consolidation of the two fees by resignation ad rciitanentiam, as in § 170. 6. Effect of seller s heir entering after an absolute con- veyance A., whose title is complete, sells to B., and on his disposition B. is infeft indefinitely, but his infeftment re- mains unconfirmed by the superior, so that he holds base of 249 Absolute ) 173. CASES OF DEFECTIVE T!TLi:S. P v'^f' "^ Conveyances. ) t i^niry. A. the seller. Upon A.'s death, C, his heir, ohtains from the superior a precept of dare coiutat, vvhich, through inadver- tence, contains among other subjects the lands sold to B. It has been questioned if, in these circumstances, the superior can accept resignation on the procuratory of A.'s disposition, or even grant confirmation of the infeftment on it, having already given an entry to C. in the same subjects ; but as C. is the same person in law as his ancestor, and liable in the warrandice of A.'s conveyance to B,, it is held that there is virtually no change produced by his entry with the superior, who can still validly recognise and act upon the feudal clauses of that conveyance, by accepting resignation, or granting confirmation so as to evacuate the mid-superiority in the per- son of C. {(I). In the circumstances supposed, the supe- rior was not bound to recognise the heir of A., the seller ; (§ 148, Art. 4.) (e) ; and the question could only have occur- red through error. («) Stewart, 20th Feb. 1827, F. C, (p. 368,) 5 S. 383. (6) Camiibcll, 4tli Jan. 1754, 5 B. S. 809. (c) See Drummond, 17th May 1793, M. 6936. (d) FuUerton, 22d Nov. 1833, F. C, 12 S. 117. (e) Mackenzie, 11th July 1838, (Scottish Jurist,) reported since the former sheet passed through the press. TITLE XIV. ENTRY WITH THE CROWN. 174. Signatures The principles which regulate the entry of a purchaser in lands holding of the Sovereign as pa- ramount superior, in no respect diflPer from those which pre- vail where the superior is a subject. But the forms of the deeds diHer materially, and the complexity in the procedure operates to the serious detriment of Crown vassals. The con- templated improvements in our system of land rights can- not begin with more propriety or advantage than in lopping off the redundancy which exists in this department. These forms commence with a writ, called a sif/nature^ which, as being the warrant of the subsequent writs, it is necessary shortly to describe. Signatures are framed and authenticated by a clerk to the Signet, and contain the clauses which, after a course of examination and translation of little real iitiUfv, 250 CottXJ 174. S.GNATUUBS. {S^^l ultimately settle down into the form of the Crown charter. When approved of by the Judge officiating in the Court of Exchequer, as Commissioner of the Sovereign, (and of the Prince of Scotland when the Sovereign has a son,) the signa- ture becomes the jvarrant for engrossing and passing the writ on which the charter immediately proceeds. The signature of resignation will serve as the type of this class of writs. 175. Signature of resignation — Preamble. — The introductory clause or preamble of the signature is expressed as in the notes («). The duties performed until recently by the Barons of the Court of Exchequer are now discharged by one of the Judges of the Court of Session, specially appointed for that purpose by statute. (a) Jurid. Styles, 1. 477. Our Sovereign Lady with the special advice and consent of the Honourable A. G. the Judge of the Court of Exchequer acting as revising Judge in Exchequer in virtue of the statutes made thereanent Ob- DAiNS a charter to be made and passed vuider the Seal appointed by the Treaty of Union to be kept and used in Scotland in place of the Great Seal thereof for- merly used there. 176. Dispositive clause of signature — This clause is necessarily a mere transcript of the dispositive clause of the deed on which the charter proceeds, and when in conformity with the last Crown charter or special retour, there is no dif- ficulty in having it passed by the revising Judge. When the conveyance is of part only of certain lands described in a former charter by a baronial or other comprehensive name, the signature will still follow the style of the disposition, in which they will be expressed as part and portion of a parti- cular barony or estate; and for instructing the dispositive clause of the signature, the disposition, as well as the last charter or retour, will be exhibited. 177. QuiEQUiDEM OF SIGNATURE («) — The signature of resignation diflers from that of confirmation, in having a clause of quaquidem, which contains a deduction of the title since the last Crown entry. This clause is common to the signatures of resignation of adjudication and of sale, and those passing on gifts of forfeiture, ullimus hcercs, and bastardy. Signatures 251 Absolute J 177. SIGNATURE.— QU.EQUIDEM. \ yT" Conveyances. ) -» ^ ^ L nines. of forfeiture, nltimiis hcures and bastardy pass upon letters of presentation by the Crown, whereby the right which devolved to the Crown is transmitted to or conferred on the presentee or donator. His entry will be completed, therefore, accord- ing to the state of the title as it stood in the person whose right devolved to the Crown, whether the lands hold of the Crown or a subject, the presentation being precisely equiva- lent to adjudication as regards the title (b). (a) Jurid. Stylos, 1. 478. See above, p. 232. (6) Jurid. Styles, 1. 568. 178. Incidental clauses of signature — After the quce- quidem are introduced those clauses which are adapted to par- ticular circumstances. 1. Cliaufje of name of lands — Where it is desirable to give a new name to the lands, this will be done in an ex- ])ress clause («), dechiring that they shall be designated by the name thus given to them in all time coming. 2. Clause ofnovodamus(b). — A new grant of the lands, called a novodanms, may be rendered necessary or expedient by the loss or destruction of the title-deeds. A clause of this nature imports a discharge of bygone casualties of superiority, and of the consequences of feudal delinquencies ; and although containing other subjects besides those in which the vassal or his authors were formerly invested, it is a Vcilid grant, in so far as concerns the superior, of all the subjects expressed in it (c). It is therefore with difficulty that such clauses in sig- natures are entertained. The signature must be preceded by a petition to the Lords of the Treasury, on which the Judge in Exchequer makes his re})ort ; and if the application be conce- ded, the signature will be superscribed by her INIajesty (ct). Such clauses are passed without difficulty by subject-supe- riors in renewing investitures, where the feu-duties have been regularly paid and accepted. 3. Erection of a. haroni/{e). — A clause of this descrip- tion must proceed in like manner on the report of the Judge in Exchequer on a petition from the applicant. It can now serve the purpose merely of a clause of union, unless it be to confer a baronial or comprehensive designation on the lands. 252 Al..olule I 178. SIGNATURK INCIDENTAL CLAUSES. J Fnf X Conveyances. ) L ii.nines. and a jurisdiction of a very limited nature (/). The once valuable privileges of barons were taken away by the Juris- diction Act {(/). Clauses of this description may be regarded as almost obsolete in practice. 4. Disjunction from a barony (h). A clause of dis- junction may be obtained without a petition, on the autho- rity of the Judge Reviser. It is applicable to the conveyance of certain parts and portions of a barony, in order to take these out of the jurisdiction. It is almost obsolete. (a) Jurid. Stylos, 1. 469. (ft) Jurid. Styles, 1, 470, and 497. (c) Ersk. 2. 3. 23 ; Riddel, 27th June 1758, M. 934(i ; Grant, lOtli August 1775, 5 B. S. 527. (d) Jurid. Styles, 1. 470. (e) Jurid. Styles, 1. 470 and 499. (/) 20 Geo. II. c. 43 ; Ersk. 1. 4. 28. (g) 20 Geo. II. c. 43. (/() Jurid. Styles, 1. 471 and 498. 179. Clause of union (a) — The use of this clause is ex- plained at § 76. 2. («) Jurid. Styles, 1. 471 and 478 ; above, p. 116. 180. Tenendas The c\ausc of te?icndas, which expresses the holdino-, is translated from the last charter. This clause of the charter being peculiar, as still containing an anxious enumeration of accessory rights, is exemplified below (a). (a) " Tenendas et h.^bendas totas et integbas terras decimas aliaq. " cum pertinen. supra script, per diet. A. ejusque pradiet. de nobis nostrisque " re"iis successoribus immediatis Icgitimis superioribus earund. in libera alba " firina (or feudifirma) feodo et liaereditate pro perpetuo per omnes rectas metas " ct limitessuas antiquas et divisas prout jacent in longitudine ct latitudine in " domibus, sedificiis, hortis, pomariis, bustis, (boscis,) planis, moris, meresiis, " viis, semitis, atjuis, stagnis, rivolis, pratis, pascuis et pasturis, molendinis, mul- " turis et eorum seciuclis, aucupationibus, venationibus, piscationibus, petariis, " turbariis, carbonibus, carbonariis, cuniculis, cuniculariis, columbis, coluni- " bariis, fabrilibus, brasinis, brucriis, genistis, sllvis, nemorihus, virguUis, lignis, " tignis, lapicidiis, lapide et cake, cum curiis et earum exitibus, hacrezeldis " bloodwittis et amerciamcntis, cum communi pastura, liberoque introitu ct " exitu, ac cum omnibus et singulis aliis libertatibus commoditatil)us proficuis " immunitalihns asiamentis et justis suis pertinen. (luibuscunque tam non nomi- " natis quam nominatis, tam subtus terra, quam supra tcrrani, procul ct propo, ad 253 Absolute 7 180. SIGNATURE.— TENENDAS. -J ,97*" Conveyances. ) I l^^ntries. " prtedict. terras aliaque prescript, cum pcrtincn. spectan. sou juste spcctare " valen. quomodolibct in futurum libere quictc plenarie intcgre honorificc bene •' et in pace sine ulla revocatione contradictionc obstaculo sen impedimcnto " ali(iuali." The above quotation shews the terms of the clause as contained in Dallas, (p. 43,) with the additional terms contained in the modern form of the charter. These are marked in italics. The old and existing forms of the clause are thus essentially the same, except in one term, which is buxcis in the modern, and hiistin (meaning toiubs, graves or sepulchres) in Dallas's form. Craig (2. 3. 31 .) informs us that in Crown charters were added the words, soh, suk, inf-e in Exche- quer, in the form of petition. Unless a splitting be made, the signature, and consequently the charter, must contain the cumvdo duty. 182. FOK.MS IN EXPEDINO THE CHAHTEIl {tl) 1. Sii/lia- turc A disponee desiring entry with the Crown, delivers at the office of the Presenter of Signatures in Exchequer, with- in six days after the commencement of a term of Court, a 254 Absolute J 182. CHARTER— FORMS IN EXPEDING. \ ^'I'J'l Conveyances. ) ( iiiiitries. note for enrolling his signature. In the course of a few days, the writer to the signet employed by him to expedc or carry the charter through the seals hiys the title-deeds before the presenter, with an inventory and deduction of the disponee's title, called a brieve for revising. This is accompanied with a note for resigning, (if the signature be one of resignation,) which is a short memorandum of the names of the parties and of the lands, and, at the same time, the signature is laid be- fore that officer and compared by him with the warrant and titles. It is authenticated by being indorsed with the sub- scription of a writer to the signet. On a day fixed, the Judge Reviser, (whose duties are ministerial) (i), attended by the presenter and a writer to the signet, revises the signature, or compares the dispositive clause, and the tenendas and red- dendo, with those clauses as contained in the last charter or retour, and authenticates the writ as duly revised. The date of revising is inserted as the date of the signature. After- wards, the composition payable to the Crown by a singular suc- cessor (a sixth of the valued rent) is struck and paid ; and on another day fixed, the ceremony of resignation proceeds in presence of the Judge in Exchequer, by a macer of Court reading and delivering to his Lordship the several notes for resigning. The signature is then registered in the books of Exchequer by the Queen's Remembrancer, a copy being left for this purpose authenticated in like form as the principal writ, and it afterwards receives the prefix of the cachet or fac simile of the Sovereign's sign-manual, which is stamped by the keeper on a blank space left at the top of the first page. 2. Precept (c) The signature thus revised, regis- tered and authenticated, becomes the warrant for a writ in the Latin language, called a precept, addressed to the Direc- tor of Chancery, whereby he is recjuired to prepare and issue the charter of the lands the ultimate object of these com- plicated forms, and for which the precept is the only legal and sufficient warrant id). The precept, in the first instance, passes the Signet, the signature being left as its warrant ; and it is then taken to the office of the Keeper of the Privy Seal, where certain fees are paid to the writer to that Seal. It is then a perfect writ, and is carried to the office of the Direc- tor of Chancery. 255 Absolute ) j^2. CHARTER— FORMS IN EXPEDING. j.^'',"^" 3. Charter (e) The perfect deed or charter proceeds in name of the Sovereign. It is nearly a transcript of the precept, with the exception of the formal parts and that it contains a precept of sasine for infefting the disponee. It is authenticated by the subscription of the Director of Chancery and the Keeper of the Great Seal, and bears the date of the signature. The date of registration and of passing the Great Seal is likewise added (e) ; and as it is the sealing that gives authenticity to tlie charter, the date of sealing may be of importance in a question of priority. (See § 149, Art. 6.) But the impression of the seal on wax is not in practice ap- pended to the deed, unless when it is to be produced in a foreign court, (which every court in England is with relation to Scotland,) or in cither House of Parliament. The forms in passing a charter of contirmation differ only in the omission of the ceremony of resigning. (a) Jurid. Styles, 1. 472, et seq. (6) Viscount Teviot, 12th Feb. 1697, M. 5109. (c) Jurid. Styles, 1. 510. (d) 49 Geo. III. e. 42, § 13. (e) Jurid. Styles, 1. 322. 183. Mode of entry in the principality lands — The only, or the eldest son of the reigning Sovereign, pos- sesses, as Prince and Steward of Scotland, the right of supe- riority of certain lands. When a prince exists, the entries in these are given in the same form as is in use in entries with the Crown, the Signet, the Seal and the Register of the char- ter being distinct. When there is no Prince in existence, the charter is granted by the Sovereign, as Queen, Princess and Stewardess of Scotland, and passes the Seals as a Crown writ («). («) Jurid. Styles, 1. 475 and 30."). 184. Entry TO church lands — Signatures of vassals in kirk-lands, that is, lands which belonged to the prelates or bishops, and their chapters, and now hold of the Crown, are passed per saltian, as it is called, where the lands arc valued at less tiian L.lOO Scots {a). In other words, the signature, when revised and registered, becomes the immediate warrant 256 Ahsolute 1 jg4^ g^^,^Y TO CHURCH LANDS. \ JP'"!'" Conveyances. ) ( Entries. of the charter, and the disponee pays no composition for his entry. The precept is thus excluded from the series of forms. By the first of the statutes referred to, the fees payable by kirk-vassals in Exchequer, and at the offices of the Signet and Seals, in lands whose valuation does not exceed L.200 Scots, are considerably reduced ; and by the latter, the heirs of those holdinsr kirk-lands valued at L.lOO Scots or under, are ex- empted from paying a fee, called susine ox, to the Sheriff, and have other privileges in the reduction of official dues. (a) Jurid. Styles, 1. 475. 185. Suggestions in regard to crown entries The privileges conferred by the statutes referred to in § 184, may, it is humbly thought, without much detriment to the revenue, be accorded to all Crown vassals, and the mode of entry /?er salhan, (omitting also the writ called a signature,) advantageously introduced. It is plain, from the nature of the forms which have been shortly noticed under the present title, that the charter is the only essential writ. There can therefore be no objection in principle to producing the char- ter in draught to the Judge Reviser, and after it has been revised, carrying it to the Director of Chancery to be ingrossed and completed. It ought to be framed in English. The seal, likewise, is an incumbrance handed down to us by our feudal progenitors, which cannot too soon be got rid of in all circum- stances. One of the two registers, in respect of which dues are at present charged, ought also to be abolished, and all distinctions removed between Crown charters, and charters by subject-superiors. Under the present system the risk of error is considerable, and the expense very great. The terms of the signature must be faithfully transcribed into the precept, and again into the charter ; and objections not affecting the formality of this last writ have been taken, which, although not entertained in the circumstances in which they were stated, might, in a competition of real rights, have been attended with difficulty («). (a) Burn, 17th Feb. 1779, M. 8852. 257 CHAPTER IV. REDEEMABLE CONVEYANCES OR RIGHTS. TITLE I. THE WADSET. 186. Skcurities over land — Land and its pertinents give, from their nature, the most perfect security that can be devised for the loan of money, and have from the earliest periods of our history formed a source of credit to the owners. We learn from Lord Kames (a) that the first form of security over land employed by our ancestors was the rent-charrie, of which examples are preserved by him. This deed is said to have been analogous to a form common in England (h). It consisted in an acknowledgment for the money, and a trans- ference of the power of the proprietor to distress the tenants, or as it is styled in Scotland, to poind the fjround. The rent- charge appears to have been identical with or analogous to the ground-annual (c), which, after the lapse of centuries, is again creeping into practice. (See § 137.) The rent-charge gave place to the feudal securities of the annualrcnt rigid and the loadsct, and these have in their turn been abandoned for the more perfect forms of the heritable bond, and bond and disposition in security. Redeemable conveyances, whether voluntary or judicial, are generally termed redeemable rights, or rights in security. (a) Law Tracts, p. 162, and App. «. (6) Koss, 2. 324-5. (c) Ross, 2. 325. 187. Origin of the wadset This form of security being unknown in the ordinary practice of conveyancers, is chiefly interesting as a ])recursor of our modern forms. The check given to sub-infcudation by several statutes, (see § 91-2,) although it had no permanent eli'ect, made subaltern rights for a time insecure, as in certain circumstances infcrrina: forfei- 258 RoaeomaHc) 187. ORIGIN. j Wadset. ture (by recognition) of the fee. It is natural, therefore, to suppose that proprietors desirous to dispose of their lands, and having neither the power to grant subaltern rights with safety, nor to transmit the fee without the consent of the superior, would invent methods for eluding the laws whereby the free commerce in land was restrained. The conjecture may there- fore perhaps be hazarded, that the wadset, in its original shape, was a mode employed for protecting purchasers against recoo-nition, the right of reversion incorporated in the char- ter enabling the parties to defend the transaction from the character of an alienation, since it empowered the reverser or apparent debtor (although probably a real seller) to redeem the lands, and thus gave it the ostensible form of an impig- noration. The frequency of such transactions, viewed in con- nection with the great scarcity of money in those early times, adds perhaps to the probability of the notion, that the wadset was originally a covert sale, and came only by degrees to be employed as a security for money (a), (a) See 1469, c. 27. 188. Form. — Wadsets were originally in the form of a charter of the lands granted by the debtor or reverser to the creditor or wadsetter^ with a holding either public or subal- tern ; and the right of reversion was embodied in the deed, as a qualification of the conveyance. But the form changed to that of a simple deed of alienation, the debtor receiving in exchange for the conveyance a letter of reversion, which was declared by statute (a) to be effectual againfet singular suc- cessors. This act prescribed a mode of registering reversions, but for preservation only, and not as essential to the validity of the right, a proviso with regard to reversions in a separate form which was afterwards introduced by the Registration Act of 1617 (i). Finally, about the year 1661, the wadset took the form of a mutual contract, and was executed in duplicate for the convenience of the parties (c). (a) 14G9, c. 27. (?>) 1U17, c. 16; above, p. 121. (c) Dallas, p. 709, et seq. ; Jiii-id. Styles, 1. 274, ct seq. 259 IlodooniiiMo Rights ooniul.Io7 189. lUGlITS OF llEVEUSION. 5 Wadset, ights. S t 189. Rights of iieversion The legal effect of tlie riylit of reversion was entirely consistent with the notion that a wadset was a covert sale, hut can hardly he explained on any other supposition. Reversions were strictissimijuris ; and although this rule was in many instances relaxed (a)^ its rigour was at one period extreme. Balfour (Jj) states, upon the authority of a decision, that in following the order of redemp- tion, it hehoved the reverser to consign the money in the precise metals specified in the letter of reversion. Thus, where a certain sum was specified, of which a penny or lialf- jiennij formed a })art, the consignation was not lawful if made wholly in gold or silver, and it required a special statute to validate the tender of the money in any other medium than the express coins stipulated by the w^adsetter (c). Nor were re- versions transmissible to assignees unless so conceived, until after the using of an order of redemption (rZ). The right of reversion has been transferred in substance to our modern forms, and appears in the precept of sasine of the heritable bond and disposition in security. (a) Ei-sk. 2. 8. 5. (6) Balfour, v. Reversions, c. 11, edit. 1754, p. 455. (c) Koss, 2. 337, et seq. 1555, c. 37. Item Because tliere is diverse and sindrie reversions maid and given for redemption and out-quitting of lands beir- and and contcinand gold and silver of cortainc special valour and price And the said gold and silver is not now to be gotten (piliairthrow the havers of sik rever- siones lies bene ofttimcs differed fra redemption of their lands Therefore it is DEVISED STATUTE and oiJDAiNED ancnt all reversiones beirand and contcin- and gold and silver or uther of them of certain special valour and price or cuinzie that gif sik gold and silver cannot be had nor gotten within the realme the havers of thay reversiones may redeeme the landes specified therein be ver- tew of their saidis reversions givand goldo and silver havand course for the time bea'nd of the samin valour weight and fines as the gold and silver specified in the saidis reversiones conform to the commoun law : And this act to be ex- tended to all and quhatsumcver reversiones byganc and to come. (f/) Ersk. 2. 8. 7, 8. 190. Registration of reversions — By the Registration Act (a), reversions were placed on the same footing with sasines in the matter of registration ; but those are excepted which are contained in the body of the wadset. An cik to a rever- sion, which means an addition made to the burden by^neans of a separate deed, on the advance of a farther sum by the wad- R 2 260 Redeomable) j(jq^ REGISTllATION OF REVERSIONS. ] Wadset. Kights. y L setter, followed the rules applicable to the principal writ(Z'). Bonds and obligations for making reversions, which took their rise out of the strict rule of interpreting letters of reversion, and were equally valid as a completed letter (t-), are likewise enumerated in the statute. Erskine is of opinion that the preference of registered reversions, although not mentioned in the act of 1693, in like manner as of real rights by infeft- ments, is regulated, not by their dates, but according to the dates of their several registrations (r/) . Leases in favour of the wadsetter, to endure after the redemption, were often forced from the reverser by his difiBculties, and were therefore dis- couraged by the statute which protects bona fide tacks or leases against singular successors {e) ; but leases for a rent exceeding a half of the real value of the subjects were sus- tained, if duly registered (/). (a) 1617, c. 16; see above, p. 121. {V) Ersk. 2. 8. 10; but see Mora's Notes on Stair, clxxvi, and eases cited. (c) See Ross, 2. 338. \d) Ersk. 2. 8. 12. (e) 1449, c. 19. (/) Ersk. 2. 8. 13. 191. Powers of the reverser — The power to redeem could, in the ordinary shape of the wadset right, be limited only by an express irritancy, to take efi'ect upon the rever- ser failing to pay the debt on a day certain («). The right was carried by assignation when in a separate form ; but when incorporated in the body of the wadset, it could be conveyed by disposition and sasine only. The reverser might redeem, or, in other words, extinguish the wadset right by usin^ par- ticular judicial forms (i). On the other hand, when the right of reversion was limited, the wadsetter might, after the term of redemption, demand his money by requisition ; but, as this step made the right moveable, it was seldom employed (c). (a) Pollock, 10th Nov. 1738, M. 7216; Kerscalian, 21st July 1749, M. 7219. (6) Ersk. 2. 8. 20, and foil, (c) Ersk. 2. 2. 16. 192. Proper wadsets. — Wadsets are either ;?ro/'uuii. stricted even after adjudication (m) . (5.) The penalty in bonds and contracts for sums of money is thus regarded as a means of enforcing payment, and indemnifying the party for expenses necessarily occasioned, and does not come in place of the obli- o-ation itself, even where the words, over and above per- formance, are omitted {n). (6.) In the old annualrent right, although it was usual to insert a penalty, it could not form a real burden upon the lands, and affected merely the right of redemption when exercised by the debtor (o) ; and thus, in competition with other creditors, the heritable bond gives an advantage which did not belong to the creditor in the annual- rent right. In order to obtain the full benefit of the penalty, a declaration may be introduced, as in the notes {p). (a) Which sum of L. sterling I hereiiy bind and oblige myself and my heirs executors successors and representatives whomsoever and that without the necessity of discussion to repay to the said B. and his heirs or assignees at the term of next with L. {affth part) sterling of penalty in case of failure and the legal annualrent of the said principal sum from the date hereof to the said term of payment and termly and proportionally thereafter during the not payment of the same And that at two terms in the year Martinmas and AVhitsunday (or any others agreed on) by equal portions beginning the first term's l)aymcnt of the said annualrent at the term of next for so much an- nualrent as shall then be due and the second term's payment at next and so forth half yearly thereafter during the not payment of the said principal sum with L. sterling of penalty for each terra's failure in payment of the said annualrent. (&) Jurid. Styles, 1. 297. (c) Ersk. 2. 9. 66 ; Bell's Princ. 1049 ; Murray Kynnynmound, 6th Nov. 1739, M.13,906. See Henderson, 8th Jan. 1624, M. lo,878 ; Lindsay, 10th March 1630, M. 5369, 15,881 ; Lord Daer, 27th Feb. 1740, B. S. 5. 695. (d) Duff, 19th Feb. 1755, M. 10,046. (e) Macadam, 25th July 1787, M. 10,051. (/) Stair, 4. 3. 2. (y) Gordon, 27th Nov. 1761, M. 10,050; Creditors of Jarvieston, 24th June 1782, M. 14,132; Mein, 26th May 1829, F. C, 7 S. 653; Jameson, 4th June 1835, 13 S. 865. (/i) Bell's Com. 1. 657 ; Allan, 23d Dec. 1737, M. 10,047 ; Smith, 3d June 1800, M. App. V. Expenses, 2; Ramsay, 22d June 1826, 4 S. 737 ; Mein, as above. See Allardes, 19th June 1788, M. 10,052. (i) Ilynd, 30th May 1826, 4 S. 628. Ik) 1672, c. 19. (/) Macadam, as above. See Bell's Com. 1. 657, and note 11, on the case of Buchanan, 20th Jan. 1801, M. App. v. Adjudication, 12. 273 H...|oemul.W- > 202. OBLIGATION TO IlEl'AY. j '\7ona''' (/«) PortoouH, 23d Nov. 1783, M. 120; Stair, 3. 2. 32. («) Bcattii-, 27th Dec. 1693, M. 10,039; Broomficld, lltli Aug. 1753, M. 9446. (o) See Creditors of Jarvieston, as above. (p) Declaring as it is lierel)y expressly pbovided and declahed that the penalty before expressed shall over and above the sums by law comprelicnded under the li(iuidatc penalty in heritable bonds inchide tlic necessiiry i-harges spe- cified in the clause of redemption herein contained. 203. CoNVEYANCF. OF ANNUALRENT («) — Thc third ckusc gives the creditor right to an annualrent out of the lands cor- responding to thc interest of the borrowed money, but under reversion, with penalty and termly failures. (a) And for further security to the said B. and his foresaids of the payment of the said principal sum interest thereof and penalties to both annexed if in- curred and without prejudice to the before-mentioned personal obligation on me the said A. but in further corroboration thereof 1 hereby sell alienate and dispone to the said B. and his foresaids heritably but under reversion in man- ner after written not only acl and whole an annualrent of £. sterling or such other annualrent less or more as by law for the time shall correspond to thc said principal sum of £ yearly to be uplifted at the said two terms of Martinmas and Whitsunday by equal portions with the penalty and termly failures before specified and beginning the first tei-m's payment as aforesaid furth of ALL and -WHOLE (describe the lands,) or furth of any part or portion of the said lands and others, or readiest rents and duties thereof. 204. Dispositive clause (a). — 1. liif/ht to possess. — (1.) By this clause the lands are conveyed to the creditor in real security, and as described in the title-deeds. The words, ivith all rifjht, title and interest, ought to be introduced after the description. Considerable weight has been given to them in a question, whether the reversionary interest under a trust had been conveyed by a heritable bond (b). (2.) This con- veyance of the lands forms the leading feature by which the heritable bond is distinguished from the annualrent right, as in virtue of his infeftment in the lands themselves the lender may enter into possession, and impute the rents not merely to the interest, but to the principal sinn. In this respect, the modern security resembles the improper wadset under which the creditor was accountable for his intromissions, whereas the annualrent right was not a title to j)ursue a personal action against tenants, unless it contained an express assignation to maills and duties. The remedy was by poinding of the s 274 ^^Ki'Muf^'i 204. DISPOSITIVE CLAUSE. 1 "Bond!^'' ground, which is competent also to a creditor in modern secu- rities, and that to the fullest extent as against the proprietor when in the personal occupation of the subjects, and as against tenants, to the extent of the rents due and current at the time ; but after entering into possession the creditor has those remedies only which are competent to a landlord against his tenants, viz. sequestration, personal action and common poind- ino-. The creditor has no lien over the moveables on the o-round, in virtue of which they can be attached to the exclu- sion of an ordinary poinding creditor; he must use the forms proper to the circumstances, viz. poinding of the ground so lono- as the debtor remains in possession, either as a personal occupant or by his tenants, and sequestration after he himself has assumed possession (c). (3.) Possession is obtained by the lender by means of an action of maills and duties, which operates as a judicial transference of the landlord's rights: the publication of his sasine by registration is insufficient to put the tenants in mala fide to pay to their landlord, v.'hose right is only incumbered — not taken away by his creditor's infeftment (d). He may also set tacks, whether to the debtor or others, and remove tenants ; but he is accountable for his intromissions, without deduction of factor fee or personal expenses in a question with postponed creditors (e). 2. Feudal r'ujht an accessory — (1.) The consequence of the various facihties conferred on heritable creditors for the recovery of their debts has been to introduce the doc- trine, that the feudal right is accessory merely to the per- sonal obligation in the bond. After the style of the annual- rent right was changed by incorporating with it the personal obligation, it was subject to become a mere moveable right by a charge against the debtor, which loosed the infeftment, and by means of which the debt might be recovered (/). It was likewise competent for the creditor to poind the ground for the annualrent to the extent of the current rents, which might amount to a larger sum than the interest actually due ; whence it followed, that unless the superplus were imputed to the principal, the debtor would have incurred the risk of double payment when the creditor chose to assign away his security. It came thus to be held, that annualrent rights in 275 Ko.Joo,„ab.o J 204. DISPOSITIVE CLAUSE. \ ''^^^ security of personal obligements might be cxtinguislied or restricted by recovering suras by means of diligence, without the necessity of express renunciation Q/) ; and the rule was extended to payment by intromission (h). ( Sec Disclinrfjc and. Renunciation.) The principle thus introduced became still more applicable as the forms of heritable securities advanced to perfection, the introduction of infeftment in the lands them- selves increasing the means which the creditor possessed of recovering payment of the loan. Our modern bonds are thus substantially personal obligations for money and its inte- rest, fortified by a conveyance of lands in real warrandice, the heritable security being never broader than to cover the actual balance of principal and interest, as warrandice lands secure only against eventual loss. (2.) A singular successor in a right in security cannot therefore trust solely to the ap- pearance of the creditor's sasine on the register (i). (3.) The cft'ect of the above doctrine on a joint security, where the same subjects are conveyed in one and the same bond to two or more creditors in separate debts, is peculiar. The discharge of one of the debts by payment or otherwise, ex- tinfT-uishinir the infeftment of that creditor to whom it was due, the security of the others becomes enlarged ; whereas by a joint conveyance in fee, each disponee acquires right to a share of the common subject, which cannot be increased by the death of one, unless there is a substitution of the survivors (Ji). 3. Security overfcu-dulies. — Considerable variation in the terms of the dispositive clause, as well as in the other clauses of the deed, will take place where the subject of the security consists of feu-duties. A security of that nature maybe constituted in several modes. (1.) The lands may be conveyed in security precisely as in the ordinary case, under an exception from the warrandice of the existing feu-rights. In this manner the right of superiority is directly burdened. This form has been sanctioned by the Court (/.) (2.) The feu-duties may be directly conveyed in security, with a pre- cept of sasine (in). (3.) They may be conveyed by dispo- sition and assignation, the intimation of which will complete the right. The first of these methods appears the mot^t advisable, and the third the least secure. s 2 270 "'Sn 204. DISPOSITIVE CLAUSE. p-';*"" (a) But also all and whole the said lands and other heritages with the pertinents and writs evidents rights titles and securities of the same all in real security to the said B. and his foresaids of the said principal sum interest thereof and penalty and termly failures before mentioned. (b) Paul, 22d May 1835, F. C, 13 S. 818. (c) Gray, 24th INIarch 1626, M. 365; Kinloch, 5th July 1701, M. 369; Garthland, 2d March 1632, M. 10,543; Ersk. 2. 8. 32-3, and 4. 1. 49 ; Mora's Notes on Stair, cexi ; Lord Corehouse in Railton, 20th June 1834, F. C, 12 S. 757, and author, cit. (d) E. of Lothian, 11th July 1634, M. 14,087. (e) Kildonan, 16th June 1785, M. 14,135. (/) See Stewart, 18th Jan. 1665, 5587-9; Douglas, 26th Nov. 1751, M. 5577, Kilk. Report. (g) Ersk. 2. 8. 34 ; Ranken, 8th July 1680, M. 572. (h) Baillie, 25th Jan. 1711, M. 9990. (i) Jurid. Styles, 1. 352. Ik) Blackwood, 7th Nov. 1740, M. 14,140. (/) Home, 22d Jan. 1794, M. 13,077. (m) Fraser's Trustees, 9th Feb. 1790, M. 16,553. 205. Obligation to infeft (a) — (1.) This clause is alternative as in the disposition of sale, and its effects upon the precept of sasine are similar. Thus, where the holding is not alternative but a me only, the creditor must obtain con- firmation in order to validate his infeftment in competition with third parties having completed rights (i). The same rules apply likewise when the debtor is in apparency, or holds a mere personal right to the lands ; (§ 138. 2, 3) ; but in practice lenders transact with those only whose title is feudally com- plete. It is said, indeed, to be inconsistent with the principle on which the doctrine of accretion is founded, that after bank- ruptcy, or when it is completed by a trustee for creditors, the debtor's title should accresce to a security which would other- wise be ineffectual (c). But it is manifest that the circumstances in which the application of that doctrine was extended to se- curities for debt could only have occurred where the common debtor was bankrupt (d) ; and besides, if it is admitted, as seems to be done by the same learned author, that the doc- trine is founded on the obligation of warrandice, it must be kept in view that such obligation is undertaken not when the title of the debtor is completed, but in the prior conveyance granted by him when solvent. Nor is there any hardship in the doctrine to postponed heritable creditors, or to the per- 2 / / Rodoomablcj 205. OBLIGATION TO INFEFT. 5 "n^ilt' Kiglits. S I liond. sonal creditors of the bankrupt, for although in one sense founded in equity, it can operate only in favour of a party who has a duly registered sasine. It is therefore a practical rule, that a trustee for creditors shall complete his infeft- ment in such a manner as to avoid that situation of the title in which alone accretion can take effect. (See Adjudications.') (2.) Where a party has advanced money on the faith of recei- vino- heritable security from a proprietor whose title is not made up, it is expedient that the bond should be immediately exe- cuted, and contain a procuratory for expcding a service and completing the title ; for by his bankruptcy the debtor's power to grant a mandate in favour of the creditor, or even to subscribe a claim of service, expires, as he would thus be doing a volun- tary act, which might confer a preference on a creditor whose right is only personal, to the prejudice of his other creditors (e). (3.) Although the obligation to infeft is alternative, it is not usual for the creditor to enter with the superior. The right in security is a mere offshoot from the fee, which does not affect the title to the principal subject ; and as it may safely be held of the debtor for an elusory blench-duty, the case can seldom occur where it is necessary to complete a public right. But for this purpose it is enough to have an alternative obli- gation to infeft, and an indefinite precept of sasine. Instances may occur where lenders, by obtaining bonds with an a me holding only, find it necessary to resort to the superior. In that event it is essential to observe, that confirmation must be obtained, as well of the debtor's infeftinent of property, if he is not entered with the superior, as of the creditor's right in security (/). (a) Above, p. 20G. . (b) Rowand, 30th June 1824, F. C, 3 S. 1J)6 ; Struthers, i2d Feb. 1826, F. C, S. ; M'Xair, 16th Feb. 1827, F. C , 5 S. 372. (r) Bell's Com. 1. 699. {(l) See Creditors of Gordon, 22d Dec. 1738, M. 7773; Paterson, 10th Dec. 1742, M. 7775. (e) Paul, 22d May 1835, F. C, 13 S. 818. See Mansfield, 28th June 1833. (/) Sec Henderson, 5th July 1821, F. C, 1 S. 103. 20G. PUOCUR.VTORV OF 15ESIGNATION {(l) Tllis claUSC, although usually introduced in the complete style of the bond, 278 Rcdecnable J 2OG. TROCU R ATOIIY OF RESIGNATION. \ "^'"f '^ Itignts. 3 ( Bond. is seldom of any practical use. In its place may be inserted a general obligement to grant all necessary deeds for com- pleting the creditor's title. (u) See Jurid. Styles, 1. 289; above, p. 208. 207. Clause of warrandice («). — Warrandice in the heritable bond, as observed by Mr Ross, seems to be su- perfluons. The proper annualrent right was a purchase of so much yearly out of lands ; and although the debtor might restore the price in order to relieve his property of the burden, there was in the original form of the security no obligation to repay. But in the heritable bond, the loan, which is the mea- sure of the right, is, with its interest, warranted by the per- sonal obligation of the debtor, which, unless there were a con- veyance of other subjects in real warrandice, is as broad as the warrandice of the lands, the latter being a mere personal undertaking to satisfy the creditor for any loss which may occur. This clause is, however, generally introduced. (a) AVhich annualrent upliftable out of the lands and others above mentioned and said lands and others themselves and infeftments to follow hereon I bind and oblige me and my foresaids to warrant to the said B. and his foresaids at all hands and against all deadly. 208. Obligation to enter heirs (a), &c By this un- dertaking all questions between the debtor as superior, and the creditor as his vassal, are determined in favour of the latter, to whom the casualties of superiority are discharged. It is recommended, in place of a mere discharge introduced in this part of the deed, to add the words in the notes (b) at the end of the dispositive clause, which is the proper part of the deed for relieving a feudal subject of claims which are natural burdens on the right of superiority. (a) And ruiiTHEij in case it shall please the said B. to hold the said annual- rent and lands and others before disponed of me and my foresaids I hereby bind and oblige myself and them to enter and receive the heirs and singular succes- sors of the said B. and his foresaids as vassals to us in the same and to infeft .and seise them therein without any composition or gratuity whatever all non-entry and relief duties and claims of composition or other casualties of superiority being hereby expressly and for ever discliargcd. 279 Re.loomal.U. J 2O8. OBLIGATION TO KNTEll IIKIUS. j ^^'^''^Y" l^'gnts. i ( Bond. (i) And I do licrohy rf.nolnce and dtspone from mc and my foresaids to and in favour of the said B. and his foresaids tlic wlxile casualties of tlie said lands and others and of this right tliercto wliicli may fall to us as superiors there- of in name of liferent escheat non-entry relief or composition of heirs and sin- gular successors which are hereby for ever discharged. 209. Assignation to rents (a) The conveyance of the rents to the creditor gives no broader right than is conferred by the dispositive clause. A creditor does not trust to this clause, but takes immediate infeftment. (a) Above, p. 94. 210. Assignation to writs — 1. Effect of the ordinary clause — The assignation to the title-deeds is usually granted with reference to a particular inventory delivered to the cre- ditor, and the writs are not in practice put into his possession, iniless it is stipulated that he shall have the custody of them. The clause is, however, absolute in its terms, and may, in particular circumstances, be of use for the preservation of the titles, or in enabling the lender, in the event of the debtor's insolvency, to prevent the acquisition of a right of hypothec over them. It must, however, be conceded, that there is much difficulty in holding, that a creditor who did not at the outset stipulate for the custody of the title-deeds, should have the power, at his own pleasure, of forcing the debtor to yield the possession of them. The debtor, as proprie- tor of the subjects, is the proper custodier of the writs where- by the radical right, on which the security is a mere burden, has been completed, and must, if challenged, be defended ; and he may have occasion to use them in obtaining other loans over the property, or for raising money to pay off this very creditor's debt. The Court have accordingly held, that an application by the lender to have the title-deeds of the subjects given and delivered to hiin, to be used and disposed of hij him as his writs and cvidcnfs, is too broad, but with- out throwing any doubt on the lender's right to adopt measures for their preservation, or to have them adequately protected against becoming biu'dened with a right of lion («). 2. JLicji over title-deeds The interpretation given to this clause in its ordinary form, as stated above, may render 280 Keelcemablc ) 210. ASSIGNATION TO WRITS. ] j, j Eights. S f iJDiiu. it prudent for a lender, when the value of tlic subjects does not greatly exceed the loan, to introduce an express stipula- tion'that he shall have the custody of the title-deeds, in order to prevent the constitution of a lien over them in favour of the borrower's agent. It is necessary briefly to explain the nature of that burden. (1.) The hypothec of a law-agent, which is properly a right of lien or retention, extends over title-deeds and securities placed in his hands by or with the consent of the proprietor of the subjects, or the heir of a fee-simple proprietor in actual possession on his apparency, unless forming steps of a depending process (b). It does not affect the title-deeds of entailed subjects beyond the life-interest of the proprietor of entail on whose employment the business is performed ; and as the title-deeds follow the subject, it is not pleadable against a creditor of the en- tailer adjudging the estate from a future heir (c). Nor does employment by a company give a right to retain the title- deeds of an individual partner {d). (2.) The agent's se- curity is for his proper business account, and the necessary disbursements made in course of the agency, although un- connected with the subjects to which the writs relate. Pay- ments in cash are thus excluded. These seem to embrace, not only proper cash-advances, but also sums paid for ad- vertising, or disbursed in payment of feu-duties, casualties of superiority, composition to a superior, inventory and legacy duties, and the like (e) ; but not sums advanced in name of expenses, by one agent to another, at concluding a loan transaction (/). It is said that remuneration in the shape of a yearly salary to the agent is not covered by the lien ; but the case referred to appears to have proceeded on spe- cialties (ff). The lien does not operate for relief from cau- tionary engagements (h). (3.) The subjects themselves are not affected by the lien, which is a mere personal claim, depending on the subsistence of the account on which it is founded (/) : it is thus not an active title to sell the lands or attach the rents, but only to claim in a ranking or sequestra- tion (k), (4.) The agent's security is therefore essentially ne- gative. As against his client and his personal creditors, and even creditors havhig real rights whether prior or subsequent 281 Rcdoonial.le ) 210. ASSIGNATION TO WHITS. Tu''!!!!'''' in date to the account, or others having chiinis on the suhjects or their price, he may retain the title-deeds until he receive either payment of or security for his account (/) ; or obtain an etlectual finding in a process of ranking, or a warrant on the factor or trustee in a sequestration (m) ; or at least a reserva- tion in a sequestration of the full effect of his hypothec (n). (5.) The agent has thus a material interest to refuse even inspection of the writs, and this he may do absolutely in questions with the client or those deriving right from him, (unless some one of the above conditions be conceded,) even where production is demanded only in modum prohationis (6) ; but a party having an opposing interest to that of the client, or a substitute of entail, may force production of them (;>). (6.) The lien of a country agent covers his responsibility for the accounts of other agents, whether in Edinburgh or the coun- try, incurred by the instructions of the client (q). (7.) The agent's right is not lost by his producing the title-deeds in a process, or sending them to another agent at a distance for necessary purposes (;•). Nor is it waived by his accepting a bond, bill, or other additional security for the amount of the claim (5). (g) M'Neill, 17Ui Nov. 1835, F. C, 14 U. 14. (h) Ersk. 3. 4. 21; Bell's Princ. 1438, et seq. and cases cited; Callman, 28th Nov. 1792, M. 6255, and case referred to; Cameron, 25th June 1824, 3 S. 176. (c) Callcndcr, 11th Feb. 1834, F. C, 12 S. 417. ((/) Skinner, 21st May 1823, 2 S. 354. (e) Bell, as above, and cases; Bell's Com. 2. 112, 117 ; Creditors of Lid- desdale, 5th July 1749, M. 6248. The report bears, that " the Lords gene- " rally attested, that in their practice in rankings, the agent's right to retain till " paid of his account was always admitted ; and as it was a creation of the " Court introduced for the agent's security, who other ways would not under- " take the affairs of a person in doubted circumstances, which sometimes might " be a loss even to his creditors, so, if it was only good against his employer, it " would in most cases be good for nothing." — Skinner, as above. — Sec Guthrie, 3d Feb. 1830, 8 S. 435. (/) Inglis, 23d June 1825, 4 S. 113. {{)) Bell's Princ. 1438; Cutliberts, 1st July 1G97, B. S. 4. 374, (/() Grant, 28th Feb. 1801, M. App. i-. Ili/pothcc, 1. (i) Foggo, 22d Dec. 1780, M. 6252. See M'Callum, 25th Jan. 1833, 11 S. 321. (Jt) Ranking of Provonhall, 9th Aug 1781, M. 6253; Linning, 27th .June 1821, 1 S. 87. 282 "" "Sf ' \ ^^^' ASSIGNATION TO WRITS. [ "j'-^Jfj'^^ (?) Bell's Prine. 1442 ; Ranking of Provenhall, as above ; Campbell and Clason, ISth Nov. 1822, F. C, 2 S. 16 ; Dobie, 19tli May 1831, F. C, 9 S. 609. (/«) I^^'ewlands, 9th Feb. 1793, M. 6254; Ilotehkis, (estate of Bertram, Gardner and Co.,) 16th Jan. 1794, M. 6256; Bell's Cases, 1. («) Johnstone, 23d Jan. 1823, 2 S. 144; Paul, 2d Feb. 1826, 4 S. 420. (o) Finlay, 23d Jan, 1773, M. 6250. (p) Bell, as above; E. of Sutherland, 31st Jan. 1738, M. 6247 ; Stewart, 29th Jan. 1742, M. 6248; Murray, 2d Dec. 1829, F. C, 8 S. 161. (q) Walker, 8th June 1831, F. C, 9 S. 691. (r) Bell's Princ. 1440 ; Com. 2. 112 ; Callman, 28th Nov. 1793, M. 6255. (s) Ayton, 23d Nov. 1705, M. 6247 ; Linning, as above ; Skinner, as above. See M'Creadie, 16th Feb. 1822, 1 S. 330. 211. Clause of registration («) — \. History. — This important part of the bond is derived by Lord Kames from the English warrant to confess judgment. Mr Ross (h) again deduces the clause of registration from the deeds of consent to excommunication common in the church courts in the fif- teenth century, on which letters of cursing passed, and were, with the letters of caption following on tliem, almost the only compulsitor of payment till the Reformation, when the form was abolished by the Lords of the Congregation. Deeds came then to be produced for decree in the ordinary civil courts, and this took place in presence of the Judge. There was at that early period no regidar registry of deeds : they were the warrants for summary decrees, and were preserved among the ordinary records of Court. But the system was by degrees improved and simplified, until the appearance in court of the advocate or procurator for the party gave place to the simple form of presenting the deed to the clerk of Court. For a long period, however, the clause was still looked upon as a mere mandate, which, according to a rule introduced from the civil law, expired on the death either of the granter or creditor, and was incapable of being assigned to the eflFect of authorising registration after the death of the latter, even although the assignation had been intimated during his lifetime (c). When the mandate ex- pired, an action of registration, as it was called, became ne- cessary {d). This inconvenience was removed, as regarded the creditor, by a statute which permitted registration to pass summarily on production of the title of the holder of 28:j c.-lecn.ul,lo j 2I 1. CLAUSE OF UEG ISTR ATION. \ "^l''''^'"'^ uigiits. ) I Bond. the obligation, whether the heir, executor or assignee of the original creditor; and, by a subsequent statute (e), it is decla- red, that all bonds, dispositions, ossif/imtions, contracts and other writs registrable, may be registered after, in the same man- ner as before the grantor's death. In practice, the provision of the former of these acts, in regard to tlie production of the title of the party in right of the obligation, is disregarded, and deeds are registered, on being produced to the keeper of the register, as a matter of course. 2. Meanbif) of the terms — The form of the clause of registration in use in Dallas's time is much simplified in mo- dern practice. The words, " and for the more secnrit)j," are now superfluous : it is no longer the decree, but the diligence on it, which gives a preference to the creditor in competi- tion {f). The words, in the books of Council and Session or others competent, were introduced about the year 1650. Prior to that period the clause specified the different courts in which registration was authorised, whereby the debtor prorogated their jurisdiction ; and the Court, after the introduction of the general terms, held all those courts to be competent for re- gistration, which had by the former practice been enumera- ted {(j). But this view was changed, and registration found incompetent, except in the jurisdiction where the grantor re- sided ill), A question then occurred with regard to the com- petency of the books of the Commissaries without special consent, even where the debtor resided within the particular commissariat, which was ultimately determined in their lavour, and the decision was followed up by two Acts of Sederunt if). Thus, the books of the Supreme Court, (of Council and Ses- sion,) and of the inferior courts of the sheriffs and commis- saries, and of royal burghs, are all competent for registration imder the clause as usually expressed ; but those of the infe- rior courts only when the obligants are, at the time, subject to their jurisdiction. The words, therein to remain for pre- servation, are of modern introduction, and entirely unmean- ing, as the registration for execution necessarily iuq)lios the preservation of the deed. The real object of registration is expressed in these words, that letters of hornim/ on six daus" charge, &c. may })ass upon a decree to be intcrponcd hereto. 284 Ke.locmal.lcf 2II. CLAUSE OF REGISTRATION. ] "boIki''" Rights. y t uuiiu. The clays of charge have rcmauied the same in oblig-ations for a long period, and no attempt appears to have been made to limit them. Fifteen days are the inducicB in ordinary de- creets, and are called the doi/s of laio : they are applicable to clauses for registration in which no period is specified. Altliouo-h the clause of registration still contains a blank for the name of the procurator, and the extract issued by the keeper of the register bears his name, and states his appear- ance, the act of registration is a mere fiction. 3. Effect The diligence warranted by the clause of registration against the person and moveable property of the debtor is, according to the modern notion, not incompatible with the subsistence of the security over the lands, (above, § 198,) and it no longer renders the debt moveable {k). The forms employed in putting the decree of registration in force will be found in the Juridical Styles (/). (a) (Clause from Dallas, p. 1. and 697.) And for the more security we are content and consent thir presents be insert and registrat in the books of Coun- cil and Session or others competent to have the strength of an decreet of the Lords or Judges thereof interponed thereto that letters of horning on six days and others necessar in form as etfeirs may be direct hereupon ; and to that effect constitutes our procurators &c. (Modern Clause, Jurid. Styles, 1. 295.) And I consent to the registration hereof in the books of Council and Session or others competent therein to remain for preservation and that letters of horning on six days' charge and all other lawful execution may pass upon a decree to be interponed hereto in common form ; and thereto constitute my procurators. (h) Ross, 1. 9G, and fol. (c) Channel, IGth Feb. 1693, M. 839. {,!) Ersk. 4. 1. 63, (e) 1693, c. 15; 1696, c. 39. (/) See Ross, 1. 112. {y) Douglas, Feb. 1674, B. S. 3. 47. \h) Morris, 21st July 1677, M. 7426. (/) Comm. of Edin. 16th Dec. 1748, Elch. v. Register, 8; A. S. 17U» Dec. 1748, and 29th July 1752. (/O Ersk. 2. 2. 16. (/) Jurid. Styles, vol. 3. 212. Precept of sasine (a) — (I.) In this clause, which in other respects presents nothing peculiar, are in correct practice inserted the power and mode of redemption, in order that they may be transferred to the instrument of sasine and 285 Rcdi.omabK. ? 212. PRECEPT OF SASINE. j "iCk'' the register. It is customary, likewise, to introduce a decla- ration, that the creditor, by entering into possession, shall not become liable for more than his actual intromissions with the rents. Doubts have been thrown upon the effect of such a declaration, in a question with postponed creditors, on the authority of a case {b), where a clause in more comprehensive terras was held not to entitle the creditor to deduct the salary of a factor, and payments for personal expenses. But these were disallowed, on the ground that a heritable creditor en- tering into possession is to be viewed as a temporary pro- prietor ; and it does not necessarily follow, that because he must account for all he receives, without deduction of ex- penses incurred in avoiding personal trouble, he ought to be debited with more than he has actually drawn, unless where gross negligence is established. The declaration under which the creditor acts is granted by a party having at the time full control over the subject ; and after its publication in the register, future lenders contract in the presumed knowledge that the creditor in the first security is exempted from strict diligence ; and they may prevent anticipated loss by paying up the preferable debt, and thus rendering continued posses- sion unnecessary. It is true that a party stipulating for, or actually charging a factor-fee, thereby subjects himself in the obligations prestable by a factor (c), and therefore the clause recommended in the Style-book may be detrimental to the creditor in a question with co-creditors ; but the infe- rence seems thence to be, that, in ordinary circumstances, a heritable creditor in possession is accountable for no more than his actual intromissions. (2.) This clause expresses the time and mode of redemption, {^qq Redemption.) (3.) The charges and expenses stipulated as a burden on the right of redemption, ought to include the yearly premiums of insurance against tire, when the houses on the property are valuable. The policy should be in name of the creditor {d). (n) Jiiriil. Stylos, 1. 290-1. (Jb) Crs. of KilJonaii, Kith Juno 1785, M. 14,135. (c) Jack, 14tli Fob. 1827, 5 S. 353; Juricl. Styles, 1. 308. ((/) Juriil. Stylos, 1. 2^ b, foot note, and clause as to insuring against fire. 286 Rights. S *''"• — ^-'— - *^'I'l'" ^"- "^^-"- I insecurity. E..leemablo| 213. COMPARISON WITH THE BOND. J BonJ and Disposition TITLE IV. BOND AND DISPOSITION IN SECURITY. 213. Comparison with heritable bond The bond and disposition in security is a modern writ, and dates from the close of the last century. It is not mentioned by Ross. This deed differs considerably in form, but in no respect in legal effect from the heritable bond, in so far at least as re- gards the security of the loan. It is thus unnecessary to notice its clauses in detail. The difference in form consists in the dispositive clause conveying the lands themselves in security of the principal and interest, as contained in the personal obligation, without mention of an annualrent, the in- sertion of a general obligement to grant all necessary deeds in favour of the lender, in place of a procuratory of resigna- tion and the power of sale. See form in Jurid. Styles (a). («) Jurid. Styles, ). 310. 214. Power of sale (ci). — 1. Is a jyrocuratory in reyn suam? — (1.) Although the bond and disposition has only the same feudal effect as the heritable bond, it is a preferable form of security, as containing a procuratory or m.andate authorising the lender to sell the subjects for payment of his debt. But there seems to be no obstacle to the insertion of a similar clause in the heritable bond. (2.) It is true that a material distinction is drawn by the late Mr Bell ih) between the heri- table bond and the disposition in security. He maintains that the latter confers not a right in security merely, but an abso- lute right of property : but the distinction does not appear to have been sanctioned by the Court, or acknowledged in prac- tice. The conveyance of the lands in the disposition is not broader than in the bond, and is in terms a conveyance in se- curity bearing express reference to the prior personal obligation, and both are rights under redemption. Were the notion well founded, it would follow that the debtor is completely divested by the infeftraent on the first bond and disposition, and can- not grant a future conveyance to the effect of derogating, in any degree, from the power contained in the prior security ; 287 Ked«ornablc> ^U. I'OWEU Ol" SALE. } Bon.l ami DispoMlion Kights. } i III becunly. but it is imdoubtcd, that the debtor may competently infeft other creditors in the subject, and that the first creditor can- not convey them to a purchaser, free of the burdens imposed by future securities (o). It would follow, likewise, that the conveyance bein<^ absolute, the right could not be extinguished by payment or intromission, but only by resignation ad re- manentiam ; nevertheless renunciation and intromission affect equally the disposition in security and the heritable bond. (3.) The procuratory or mandate to sell is valid after the death of the debtor, and against future creditors, as beino- granted in favour of a party in rem suam, and made real by in- feftment and registration [d), 2. Effect in questions with the debtor (1.) The effect of the power of sale was first judicially discussed in a case which occurred in the yejft- 17!)0 (e), and it was sustained chiefly on the strength of the practice. In a question even with the debtor, a neglect of the formalities expressed in the clause of sale may give rise to vexatious questions, and ought carefully to be avoided, although, when trivial, they have, in favourable circumstances, been overlooked. Thus, a sale un- der the power will not be interdicted on such grounds as an irregularity in the first series of advertisements, a second series being unexceptionable (/), or a mistake in the Christian name of the debtor, if the identity is manifest {[/). (2.) The Court will interfere to prevent a sale, if circumstances exist which imply an exercise of the faculty, hurtful to the interests of the debtor, without being of advantage to the creditor {h). (3.) Notice in a paper which contains advertisements only is a sufficient compliance with a clause requiring advertise- ment in a newspaper {i). (4.) It is thought that even in a question with the debtor, a sale by private bargain, althouoh covenanted in the bond, would be of very doubtful validitv : the only sure method of disposing of subjects to the best ad- vantage is by open and public sale. 3. Effect in questions with other creditors (1 .) In ques- tions with creditors holding postponed securities, the power of sale has been sustained to every effect but that of enabling the creditor to give the purchaser a title clear of the post- poned burdens. This defect was recognised in a question 288 Kodocniahle 7 014 , ,^ ,^„.x^ C Bond and Disposition Kights. } 214. POWER OF SALE. { in Security. with a purchaser who had paid over the bahmce of the price to the debtor, to the prejudice of a postponed creditor (It). (2.) Creditors in postponed securities cannot interfere with a pro- per exercise of the power of sale, or, by instituting a judicial sale, control the proceedings of the preferable creditor (/). (3.) In a question with the trustee on a sequestrated estate, it was contended that the power of sale in a first security did not exclude his interference. This plea was maintained chiefly on the terms of the clause in the Bankrupt Act (ni), which restrains the power of real creditors in certain circum- stances to bring the estate to sale ; but it was held that the clause imports such real creditors only, as having no conven- tional powers of sale in their securities, can resort to legal proceedings only. On the general question, the Court were nearly unanimous in opinion, that a creditor may exercise a power of sale uncontrolled by other creditors, whether in post- poned securities, or represented by a statutory trustee, the faculty having been invented for the express purpose of guard- ing against the occurrence of bankruptcy, and both as a pro- curatory for the creditor's own behoof, and made real by^in- feftment and publication in the register, being available to the exclusion of those holding postponed rights ; that an objection founded on the creditor's v/ant of title to convey the subject free of the burden of such rights, is not competent to the cre- ditors in those rights, or to a statutory trustee ; but that, as a first creditor is in some sense a trustee for all interested in the price, it is in the power of the Court to interpose ex equitate to prevent an abuse of the power of sale, and their interference will be justified when a clear mode of disposing of the property to more advantage can be pointed out (n). The burden is thus laid on the opposing party, of shewing relevant grounds for restraining a preferable creditor in the exercise of his right (o). 4. Mode of exercising the power. — The due execution of the power or faculty of sale is of much importance, as bearing on the purchaser's title and the mode of clearing in- cumbrances. (1.) Much caution is necessary in following out the order of sale, by giving due intimation to the debtor, and making re(;[uisition under form of instrument, and after- 289 lledeemable) 91. ,>nurn nr <:ai F t Bond and Dispobition RighU. \ 214. lOUEU OF SALE. | in Security. wards pu])lislung the necessary advertisements for the full period, and in the newspapers expressed in the disposition in security ; (above, Art. 2.) In questions with other credi- tors, the formality of these proceedings will be strictly scru- tinised. (2.) Doubts have been entertained if the intimation prescribed by the deed will be available to authorise a sale after the debtor's death, if his heir be under age, or even durino" the currency of the annus deliberandi ; and unless it were held that a party can dispense not only with his own lei^P<^^i'iou consent of tlic first creditor, unless judicially, by availing themselves of the intricate and expensive form of the ranking and sale. G. Bemedjj hij judiciul proceedings The eftectual mode of enabling the first, or any other creditor, to bring the subject to sale, and give a clear title to a purchaser, seems therefore to be, by combination of the voluntary procedure sanctioned by the bond and disposition in security, with a judicial process for dividing the price among the whole parties interested. Care, however, must be taken, on the one hand, to avoid too much interference with the rights of the creditor who has lent his money on the faith of an unincumbered subject, over which he has acquired a title from the proprietor to exercise a large measure of control, and, on the other, of so depressing the interests of future creditors, as to make it diflScult for a pro- prietor to obtciin loans upon postponed security. In autho- rising a postponed bondholder, having a faculty in his bond, to bring the subject to sale, provision ought therefore to be made that a sale shall not be conclusive as against the prior creditors, unless the price obtained is equal to the amount of their debts. Under such a provision, the price being properly invested for behoof of those having an interest in it, a power given to postponed creditors to expose the subject to sale without having recourse to judicial authority in the first in- stance, would perhaps prove a salutary change on the present system, whose practical operation is to render the voluntary sale of a subject burdened to more than its value nearly im- possible. Where the creditors should refuse to concur in a discharge and conveyance to the purchaser, the price might be consigned, and the estate disburdened, by authority of the Court, under proper provisions in regard to the citation of minors and others legally disqualified from giving consent (»•). (a) Deci,auis-g also as it is hereby expressly rRovinr.D and declared that if I or my foresaids shall fail to make payment of the sums that shall be due by the personal obliijation before written within (the usual period is si.rj months after a demand of payment is intimated to me or my foresaids person- ally or at our dwoUing-plaee if within Scotland or if furth thereof at the market- cross of Edinliurgh by a notary-public and witnesses then and in that case it shall be lawful to and in the power of the said B. or of his foresaids immediately after the expiration of the said six months and without any other intimation or process T 2 292 Redeemable 7 91 < nnwrRm^^viP ( Bond and Disposition Rights. } 214. POWER OF SALE. | in Security. of law for that effect to sell and dispose in whole or in lots of the foresaid lands and others before disponed by public roup on previou« advertisement weekly for at least (the usual period is two) months subsequent to the expiry of the said six months in any two of the Edinburgh newspapers {imialli/ named) they being always bound upon payment of the price to be given therefor to hold count and reckoning with me and my foresaids for the same after deduction of the foresaid principal sum whole interest thereof liquidate penalties and termly failures that shall be due under the said obligation and all other expenses to be laid out by them as aforesaid or in the sale of the said lands and others and for that end to enter into articles of roup grant dispositions containing procuratory of resignation assignation to the writs and evidents and to the rents maills and duties precept of sasine and a clause binding me and my heirs in absolute warrandice of such dispositions and obliging me and them to corroborate and confirm the same and to grant all other deeds and securities requisite and necessary by the laws of Scotland for rendering the said sale or sales effectual in the same manner and as amply in every respect as I could do myself Declaring that the puixhaser or purchasers shall be nowise concerned with the application of the price or any of the conditions herein mentioned but that the sale or sales shall be equally good to him or them as if made by me or my foresaids And also declaring that in carrying the said sale or sales into effect it shall be lawful to the said B. or his foresaids to prorogate and adjourn the day of sale from time to time as they shall think proper notice being always given of such adjournments in the said newspapers as above mentioned once weekly for at least (the usual period is three) weeks And I bind and oblige me and my foresaids to katify appkove of and CONFIRM any sale or sales that shall be made in consequence hereof and to grant absolute and irredeemable dispositions of the foresaid lands and others before mentioned or such parts thereof as shall be sold to the purchaser or pur- chasers their heirs and assignees and to execute and deliver all other deeds and writings that shall be necessary for rendering their rights complete. {h) Bell's Conv. 3d edit p. 89, 90. (c) Beveridge, 17th Jan. 1829, F. C, 7 S. 279. (d) Beveridge, as above. (e) Brown, 11th July 1790, M. 14,125. (/) Glas, 29th May 1830, 8 S. 843. {g) Dickson, 15th Jan. 1831, 9 S. 282. (Ji) Beveridge, as above. ((■) Dickson, as above. {k) Steven, &c. 19th Feb. 1811, F. C. ; Bell's Com. 2. 291-5. (0 Marshalls, 19th Jan. 1821, F. C. ; Simson, 25th Nov. 1831, F. C. ; IDS. 66; Hutchinson, 14th Feb. 1833, 11 S. 395; Robertson, 12th Dec. 1833, 12 S. 203. (m) 54 Geo. III. c. 137, § 42. (n) Beveridge, as above. (o) See Ker, 3d March 1830, 8 S. 628. (p) See Bell's Com. as above. (q) 1695, c. 6. (r) 54 Geo. III. c. 137, § 42. («) Bell's Com. 2. 294. (/) See Marshalls, as above. 293 lledeomal.le 1 ' 214. I-OWLK OF SALE. 5 ^"'"'. '"l^ »-P-ili°" Bights. S l '" Security. (a) Bell's Com. 2. 294-5. (») M'Millan, 4th March 1831, F. C, 9 S. 551. (tt>) A bill has been before Parliament relating to the subject of this section. TITLE V. BOND OF REDEEMABLE ANNUITY. 215. Form and effect This security is of modern in- troduction, and cmjjloyed to constitute burdens over entailed subjects limited to the granter's lifetime. It is in substance an annualrent right defeasible by the death of the debtor. (1.) By the ohJigatory clause, the granter, in consideration of a certain sum of purchase money, binds himself, his heirs and successors, to make payment of a,fi'ee yearly annuity or annual- rent charye of a specitied amount, and that at two terms, &c. (2.) By the dispositive clause the lands are conveyed in real security, as in the bond and disposition ; but of the annuity merely, and that during the natural life of the granter, or so long as it shall be unredeemed by him ; under an express de- claration, that no adjudication or other diligence to follow upon the obligation shall affect the estate or the right of fu- ture heirs, and the security shall, on the death of the granter, become ipso facto void and null. (3.) The other clauses fol- low the style of the bond and disposition, qualified by refe- rence to the above declaration («). (4.) This form of secu- rity has stood the test of judicial discussion, and been held eflectual in competition with a tenant of the lands who claimed retention of rents on the strength of a prior personal bond in his favour (b). («) Jurid. Styles, 1. 337. (6) Nairnc, 15th Feb. 1810, F. C. The clause was in these terms: " But " declaring always as it is hereby provided and declared that the foresaid an- *' nuity shall not be understood in any respect svhatcver to alToet the lands and " others foresaid or the rents thereof for any longer period than my lifetime or " the not redemption of the said annuity; nor shall these presents be the ground " of any apprising or adjudication or of any other legal diligence whereby the " lauds and others foresaid may be in any manner of way affected or e^cted " from the heirs of entail entitled to succeed to mo therein in virtue of the deed " of entail thereof &c. and further that my granting these presents shall in no " wise be interpreted or extended to infer any infringement upon or the incur- " ring of any of the irritancies contained in the said deed of entail or any dero- " rogation thcrefrtun in any manner of way whatever the faid annuily being only 294 Redeen,able) 215. FORM AND EFFECT. j„, ^^f f ., Kiglits, S t Kedeemahle Annuity. " meant and intended to affect the said lands and others to the extent foresaid " during my liferent right thereto and no otherwise." TITLE YI. SECURITIES FOR FUTURE DEBTS. 21G. Bonds of credit and relief (a). — X.Ejfect of sta- tute 1696 ih) This statute declares, that any disposition or other " rights that shall be granted for hereafter, for relief or " security of debts to he contracted for the future, shall be of " no force as to any such debts that shall be found to be con- " tracted after the sasine or infeftraent following on the said " disposition or right." These words, afler the sasine, are to be read, afler the due registration of the sasine (c). This enactment proceeded on the preamble, that securities " in " relief not only of debts already contracted, but to be con- " tracted for thereafter, are often found to be the occasion or " covert of frauds ;" but as the terms admit of no exception, the statute was held to be applicable to cases where the in- terests of commerce called for a different rule ; and securities to bankers for cash-credits, and to cautioners in such obliga- tions for their relief, were thus struck at, except as regarded sums advanced prior to the infeftment {d). 2. Cash-credits legalised. — Securities to bankers for cash-accounts are truly not indefinite, or for future debts, in any other sense than is the obligation for the penalty in a liquid obligation, when the amount which the advances are limited to and cannot exceed is specified in the bond. They were accordingly taken out of the scope of the Scottish sta- tute (e), and heritable securities may now validly be given for cash-accounts with bankers, and in relief to cautioners in such accounts, provided the principal sum and interest under the bond shall be limited to a definite sum, " the said definite " sum not exceeding the amount of the principal, and three " years' interest thereon, at the vaia.oi ^\q j^er centum ;" but the specification of the principal sum, with the addition of the words, three years interest at the legal rate, is held to be suflBcient compliance with the proviso of the Act (/). («) Jurid. Styles, 1. p. 315, et seq. (h) 1696, c. 5; above, p. 269. 205 "uSf'l 21C. BONDS or CED.T AND n.,,..r. {^.ri"[,"J" (c) Dunbar's Creditors, 30th July 1789, M. 115G. (d) Creditors of Stein, 14th Nov. 1789, M. 1138; Ilaiies, l()7l ; affirmed on ap. ; Brough's Creditors, 2d March 1791, M. 1159. (e) 33 Geo. III. c. 74, § 12; 57 Geo. III. c. 137. Sec Bell's Com. 1.673, and 2. 236. (/) Morton, 10th Dec. 1828, 7 S.. 172 ; affirmed, 4 W. S. 379. 217. Absolute disposition with back-bond — (1.) A security for future as well as past advances may be consti- tuted by means of an absolute irredeemable disposition in fa- vour of tbe creditor, from which all mention of the nature of the transaction must be excluded. The purpose of the con- veyance is expressed in a back-bond («), which is of the nature of a right of reversion, and therefore, to be effectual against the singular successors of the disponce, must be re- corded in the register of sasines and reversions (b). (2.) The disposition being in form absolute, the qualification of the right can be proved only by the writ or oath of the dis- ponee (c). (3.) The conveyance, as being absolute, neces- sarily excludes the debtor from all power to borrow money so as to burden the subject, unless from the disponce ; and as the right of reversion is a mere personal claim, which can- not be broader to his creditors than to the disponer himself, the disponce is not bound to redispone unless upon payment of all his advances, whether made before or after infeftmcnt ( t (c) Marshall and Ruthvcn, as above. (d) 1661, c. 62; Ersk. 2. 12. 31, 32 ; Chalmers, 8th Nov. 1737, Eleh. Co7h- pet. 4, and Adjud. 14. (e) 1661, c. 62 ; 1672, c. 19. See Ersk. 2. 12. 31-41. (/) Stair, 3. 2. 23. {g) Ersk. 2. 12. 29. (A) See ]\Iarshall and Ruthvcn, as above. (i) See Dick, 15th June 1748, M. 1724. 223. Where the lands are in non-entry — 1. Entry hj charge The debtor against whom adjudication is sought may have right to the lands as an heir unentered, or the debt may have been owing by a party deceased, to whom the heir has not made up a title. He must be the proper heir-at-law, or of the investiture, the heir of provision being the proper party where the object is to adjudge the subject of the con- veyance ; but it has been questioned, if a fiduciary fiar who is the heir-at-law, and holds the property under a conveyance to himself in liferent allenarhj, and to the heirs of his body in fee, can be proceeded against except under the character of heir (a). The feudal effect of the forms prescribed in that situation of the title depends upon the provisions of two statutes (b). These do not, however, express the distinction introduced in practice, in respect of the steps to be followed, between the case where the debt is the heir's, and that where it was the ancestor's. The statute of 1540 prescribes in general terms a charge against the heir, upon forty days, to enter to the lands, and on his disobedience, authorises letters of apprising, (now superseded by adjudication,) which shall have as great strength, force and effect as if the heir icere entered, and the lands holden of the immediate superior thereof. A charge under the sta- tute is thus equivalent not merely to special service, but to the complete renewal of the feudal investiture in the person of the heir. This effect is limited, however, to the credi- tor and his co-adjudgers, and does not extend to validate by accretion a voluntary conveyance and infcftment flowing from the heir (f). The statute of 1G21 extends the provisions of the former to the case where the heir is himself the debtor. 2. Where the ancestor was tlie debtor — (1.) In order to fix the constructive representation introduced by the sta- tute, in the apparent heir, it has for a long period been the 303 Redeemable / 223. SUHJECTS IN NON-ENTRY, 5 Adjudications. Rights. \ I practice to pass under the si ^38. FORM ANU TEK.MS. \ ^J^*^^'"^.'"' Succession. ) ( Disposition. 238. FOUM AND TERMS OF THE CONVEYANCE (1.) It is an established rule that the mere form or name of a deed, e. fj. that it is a testament, does not prevent it operating as a convey- ance of heritage, provided the proper words of transmission are used. A general disposition, therefore, to take effect at the grantor's death, of the whole heritable and moveable estate of which he shall die possessed, is effectual if it contain dispositive words, in place of such terms as legate and bequeatk («). (2.) T\\Q\\ov{\. dispone maybe considered essential to the con- veyance of heritage; (above, § 45); but the other words usually in collocation do not appear to have any distinctive meaning. Thus the terms, disjwne^ assif/n and convey^ are effectual to transmit the right to a debt secured by adjudication (i), but not transfer^ assign and make over(c). (3.) With respect to the subject of the conveyance, the words used must clearly embrace heritage. Thus, all moveable and immoveable subjects, of whatever denomination {d) ; every subject, ichether heritable or moveable [e) ; all estate whatsoever, real or personal^/) ; have been sustained as sufficient to ground adjudication of lands in implement ; but the terms, goods, gear, debts, S^-c. and other effects of what kind or nature soever, do not carry heritable bonds or adjudications {g) ; and the terms, goods, gear, means and effects heritable and moveable, although comprehending heritable bonds, and decrees of adjudication for debt, have been held not to comprehend a proper feudal subject, such as a house (A). The form of this deed is simple, and will be found in the Style-book (/). (4.) The terras employed to de- signate the different kinds of heirs are explained below ; (§ 244.) It may be observed here, that, in general dispo- sitions of the whole herita^'e which shall belonsr to the ^ranter at his death, the term, heirs lohomsoever, is not interpreted so strictly as in special settlements, but is flexible according to circumstances (/e). (a) Ersk. .3. 8. 20. (fc) Robertson, 17th June IT80, M. 15,947. (c) Galloway, 12tli Jan. 1802, M. 15,950. (f/) Wclsb, 28th June 1809, F. C. (e) Glover, 7th Doc. 1810, F. C. (/) Drunimond, 17th July 1782, INI. 2313. 316 Deeds of 1 238. FORM AND TERMS. \ .S^"'"'!':^ Succession. ) ( Disposition. ((/) Ross, 2d March 1770, M. 501 9 and 14,948 ; Hailes, 346, affirmed on ap. See Brown, 3d Dec. 1803, M. App. v. Clause, No. 5. (/() Brown, 24th Dec. 1770, M. 3440. 0') Jurid. Stylos, 1. 264-3. (k) See Farquharson, 2d March 1736, M. 2290, 6396, 3 B. S. 844. TITLE II. SPECIAL DISPOSITION AND SETTLEMENT. 239. Purpose of the deed. — This form of conveyance is employed when it is the intention of the granter to transmit a particular estate or subject to a favoured individual and his heirs ; or failing the disponee, to certain other persons, who are styled substitutes. And the property may be conveyed either as a simple or limited fee («). This deed is substan- tially an entail without the restraining clauses ; and although it is not so much a favourite in modern practice as the trust- deed, it is still occasionally employed by those who dislike the machinery of a trust, or where the subjects are of small value. It will be convenient, therefore, to consider it as introductory to the subject of the strict entail, and thus clear the way for the more complex clauses of that form of settlement. (a) Jurid. Styles, 1. 223. 240. Form A special disposition mortis caicsa does not ma- terially differ in the feudal clauses from the disposition of sale ; (see § 131, et seq.) It bears a reservation of the granter's life- rent, a power to alter, and a clause dispensing with the delivery, in order that the granter's control over the subject may be pre- served entire, since it is essential to the validity of a convey- ance of heritage that the dispositive words be cle ■prasenti and absolute {«). A clause of absolute warrandice, although unusual, is not inapplicable, where the granter intends that the disponee shall have a preference in a question with his repre- sentatives {h). The dispositive clause, as embracing what is peculiar to the special settlement, requires particular notice. («) Ersk. 3. 8. 20; Campbell, 28th Nov. 1770, M. 14,949. (6) See Coventry, 8th July 1834, F. C, 12 S. 893. 241. Dispositive clause Constitution of real LIEN. — This form of conveyance is not unfrcqucntly used for 317 Deeds of ) 241. DISPOSITIVE CLAUSE. { Seuieme'nt. Succession, i t c)i.im.iiii.iii. giving a subject to a favoured individual, under the burden of the grantor's debts in general, or of particular debts or lega- cies ; or of sums of money which are to form a real lien upon the property. Burdens which are sufficiently described in the deed become imi)osed on the disponee by his acceptance of the conveyance; but the strongest expressions of mere personal obligation are ineffectual to constitute a real lien as against the lands. It is thus necessary that the conveyance be duly feudalised, with all its burdens ; and as the disponee has a manifest interest to exclude the latter from the instrument of sasinc, it may not, in every instance, be expedient to intrust the deed to his uncontrolled disposal. An irritancy cannot add to the security of those interested in the reserved bur- dens, unless it be transferred to the sasine. The general effect of a real lien is explained above ; (§ 130.) It authorises poind- ing of the ground, and is a title of adjudication ; but a power of sale seems inapplicable to such a security, although com- petent with reference to a burden reserved in favour of the disponer. It is. suggested, as an apparently competent mode of making a real lien of greater force and effect, to add a foculty and power to the favoured person to grant warrant for the infeftment of a proper heritable creditor by constitu- tion (o). The effect of such a faculty is explained above; (§ 13G. 3.) (n) Declarixg always as it is hereby expressly pnovinED and declared that this present disposition is made and granted under the express burden of the sum of L. in favour of and payable to C. and his heirs and assig- nees with a fifth part more of |icnalty in case of failure in punctual payment thereof at the first term of Whitsunday or INIartinmas which shall happen after my death with the lawful interest of the said principal sum thereafter during the not payment which sums of principal interest and penalty are hereby de- clared a real and preferable burden affecting the said lands and others and are appointed to be inserted in the infcftnients to follow hereupon and in all the future transmissions and investitures of the said lands and others ay and until complete payment be made thereof And in the event of the said principal sum remaining unpaid after the term of payment foresaid full power and faculty arc hereby reserved in favour of and expressly given to the said C. to burden and affect the said lands and others with debt to the amount of the said sums of principal interest and penalty and to grant warrants and precepts for infeftment therein in security of the said sums or of any part of the said principal sum with interest and penalty corresponding thereto containing powers of sale of the said lands and others and all other usual and necessary clauses. 318 Deeds of ) 242. FEE AND LIFERENT. 5 « f.f"^' . Succession. ^ I Settlement. 242. Fee and liferent — The special disposition and settlement is frequently employed to confer rights of a distinct nature upon two individuals in the same subject, that of the one being- temporary and the other permanent. The rights of fee and liferent may, however, be separately constituted. 1. Direct conveyance in fee and liferent. — This is effect- ed by means of the terms, to A. in liferent, and to B. in fee; the obligation to infeft being expressed in similar terms, and the precept of sasine containing warrant to give liferent state and sasine to the former, a?id heritable state and sasine to the lat- ter. And although a succession of liferents in perpetuity can- not be created, there appears to be no incompetency in a sub- stitution of liferents conceived in favour of persons in exist- ence (a). 2. Direct conveyance in liferent A disposition may be granted in liferent simply, leaving the fee to descend to the heir of the granter, or separate conveyances may be exe- cuted of the two rights. It is competent to assign an un- executed deed of conveyance, with its feudal clauses, to the effect of authorising infeftment in liferent only. This form was customary in the constitution of freehold votes. (See note, p. 207.) 3. Liferent by reservation This species of right is opposed to liferent by constitution, which is created as above. A reserved liferent consists of what remains after granting a disposition of the fee to take effect on the death of the dis- poner. It is usually combined with a reserved power of sale, and to burden the subjects with debt.(i). It is plainly essen- tial to this sort of liferent, that the grantee be infefted at the date of the conveyance, and that he shall continue undivested by the new infeftment. Thus, one who conveys a personal rif^ht, under reservation of his own liferent of the lands, is not a liferenter by reservation in the feudal sense of the term (c). Thus, also, the granter of a disposition in favour of himself in liferent, and another in fee, will, by infeftment on the con- veyance, be on the one hand entirely divested, and on the other acquire a liferent by new constitution. 4. Joint liferent A right of liferent may be con- stituted in favour of two or more parties, and the rules of 319 Deeds of ) 242. FEE AND LIFERENT. 1 « !r*''''\ Succession. S I Settleinciit. interpretation seem to be the same as those which apply to a joint conveyance in fee ; (§ 243.) The difficulty supposed to exist when the subject is indivisible, or would sutler from division, seems to be imaginary, as the yearly fruits or returns cannot be of that nature (d). 5. Effect of infeftment Where the right of liferent is reserved, new infeftment is unnecessary, the disponer re- maining undivested, and thus holding an infeftment to the ex- tent of the liferent. Where, again, it is a right by constitu- tion, infeftment is competent in the rights of liferent and fee jointly, or in either separately (e), the sasine bearing liferent state and sasine, or heritable state and sasine, according as the right completed is one of liferent or of fee. ( See § 74. 3.) 6. Poicers oftlie liferenter Liferent is classed by our systematic writers among servitudes. Nevertheless it cannot be constituted without infeftment. (1.) The powers of a life- renter are limited by the obligation which he lies under to enjoy the subject salva re substantia, and by our former law he behoved to find caution (f) to the fiar. In a feudal sense, his powers differ according as the right is by reservation, or by constitution. But under neither of these forms can the liferenter give a feudal investiture to another in the liferent. The right is considered personal and incommunicable, although the power to exercise it maybe given by assignation. (2.) A liferenter by reservation has, in virtue of his original infeftment, the privilege of entering the heirs, and even the disponees of vassals, — a power which does not belong to a liferenter by con- stitution, unless combined with a matrimonial fee (^). It may be doubted if it is competent, even by an express clause, to in- vest a liferenter by constitution with the power of entering vas- sals. It has been held, that a charter by progress granted un- der such a power, was not eftcctual after the death of the life- renter Qi) ; and it is thought that in a competition, a title of that nature would not to any effect be sustained. It appears incon- sistent with feudal principles, that an infeftment in the fee of lands, whether original or by progress, which is defeasible by the death of the grantor, should be at all available, unless the deeds of investiture and the register bear the limitation of the right. (3.) It may perhaps be doubted if a liferenter, 320 Deeds of 7 242. FEE AND LIFERENT. jc^.lf"'' , Succession. ) I Settlement. whether by constitution or reservation, can receive resigna- tions ad remanentiam, unless he hold special powers to that effect, as commissioner of the fiar. The acceptance of resig- nation ad remanentiam differs essentially from resignation in favorem, as affecting the rights of the superior ; whereas the latter is a mere formal step for the benefit of another party. Were a liferenter to enjoy this power, he might materially compromise the interests of the fiar without his consent (i). Resignation ad remanentiam is a mode not of renewing, but of extinguishing a subaltern fee. (See Resignation ad Remanen- tiam.) (a) Bell's Princ. 1721 ; Allardice, 6th March 1705, Bell, 56. See Baillie, 17th June 1776, M. U,941 ; AVaddel, 9th July 1833, F. C, 11 S. 949. (6) Reserving not only my own liferent of the foresaid lands and others but also full power and liberty to me at any time of my life or even on deathbed to Ai 243. CONJUNCT RIGHTS. L ?r'^' . Succession. ) ( Settlement. to A. and B. joitdhj, and their heirs. (3.) The terms, to y/. and B.joiidlij, and to the said B. in the event of Ids sttrvivance, and Jus heirs^ will give the entire fee to B. on A.'s predecease ; but it' A. should be the survivor, the effect will be the same as in the second example. (4.) If the survivor, whether A. or B., is the intended fiar, the conveyance will be conceived in favour of y/. and B., and the hnrjest liver of them, and his heirs. The words, their heirs, are likewise construed to mean the heirs of the survivor, although their import in marriage-contracts is not so clear. Under a right of this last description, the share of each of the conjunct fiars is attachable for his own debts during their joint lives, and that of the predeceasing fiar descends to the survivor in so far only as it exceeds the debts of the deceased (b). (5.) Where this result is to be avoided, the right of the disponee first deceasing must be re- stricted to a liferent. A clause conceived " to and in favour " of A. and B., and the longest liver in liferent, for their life- " rent use allenarhj, and the heirs of the said B. (or A.) in '■''fee," will limit the right of A. and B. to a bare liferent; and if the liferent of one of the parties is to be of a half only, it may be expressed thus, " to and in favour of the said A. and " B., equally heticeen them, in liferent, and to the said B. for " A.J and his heirs, in fee (c)." Rights to husband and wife, and parent and child, are noticed below. (See Marriage- Contract.) (a) Ersk. 3. 8. 35. (b) Last refer. (c) Last refer. ; Jurid. Styles, 1. 125. 244. Terms descriptive of heirs The dispositive clause may contain a substitution of persons in succession after the disponee, and it is of importance to mark the pre- cise import of the terms descriptive of the different kinds of heirs. The word, heirs, has a general signification, and means those who take by law or destination, whether of line, conquest or provisio7i, according to circumstances. {I.) Heir of line is the heir-at-law in an unlimited fee, or fee-simple as it is styled. It is nearly synonymous with heir-af-lau; Jicir-fjcneral^ heir ichomsoever or whatsoever ; but although the two charac- X 322 Deedsof) 244. TERMS DESCRIPTIVE OF HEIRS. ? c, ^£lf Succession. ) i bettlement. ters may unite in one and the same individual, it can never import, in an abstract sense, heir-male or heir of conquest. (2.) Heir of conquest is the heir infeuda nova — fees acquired otherwise than by succession by one of three or more brothers, not the eldest or the youngest. Such heir is the immediate elder brother, or his representative, and is contradistinguish- ed from the heir in heritage, who is the immediate younger brother, or his representative, it being assumed that the deceasing brother leaves no heirs of his body. When the youngest of several brothers dies without issue, the imme- diate elder brother is heir both of line and of conquest {«). (3.) Heirs-portloners are females in the same degree of pro- pinquity, e. fj. daughters, sisters or nieces of the deceased, who succeed to equal shares 'pro indlviso. Conquest has no place among females : on the death of a female leaving no male heir, her sisters, or other nearest representatives, take equally (Z»). (4.) Heir-male is uniformly an heir of provision by the destination of an ancestor more or less remote, and means the nearest male heir connected by males, and exclu- sive of females and males connected by females. The term, heirs-male, although in the plural number, has a singular sig- nification. An estate provided to the heirs-male of a mar- riage, or of the body of a particular individual, descends to the eldest son ; a rule which indeed applies universally to the term heirs, used in the plural number, except with reference to heirs-portioners, and heirs of conquest in marriage-settle- ments. It follows, that under a destination to A., and the heirs-male of his body, and the heirs whatsoever of the body of the said heirs-male, the heir whatsoever of the eldest son of A.'s body will take in preference to the second son of A. (c). An heir-male may be heir of conquest. For example, when a destination is conceived in favour of one and his heirs-male, it would seem that his immediate elder brother (failing issue of the body of the deceased) will take, as heir-male of conquest, in preference to the immediate younger brother as heir-male of line {d), unless the words, heir-male of line, are employed (e). Heir-male of the body, means precisely what the words in their ordinary sense import — the eldest son or his descendant being a male connected by males. (5.) Heir-female is the heir-at- 323 Deeds of ) 244. TERMS DESCUIPTIVE OF HEIRS. 5 ^ m^ml. Succession. S ( actHemcnt. law, whether a female, or a male connected by a female, falling heu's-male. Thus the granddaughter by a son takes in pre- ference to the grandson by a daughter (f). Questions of difficulty have arisen from the use of the word daughter in destinations, which is not synonymous in legal import with heir-female. Thus, under the terms, eldest daughter, or heir- female of a marriage, the daughter of the heir-male of the marriage is preferred to his sister (g), the term, eldest daugh- ter, being here qualified and explained by that of heir-female. Apart, however, from qualifying expressions, the terms, daugh- ter, or eldest or only daughter, means the immediate daughter of the marriage, and is not synonymous with heir-female being a female (Ji). (6.) The terms, heirs, or heirs and successors, or heirs and assignees lohomsoever, or ichatsocver, mean the heir-at-law, in contradistinction to the heir by destination or provision : they are nearly synonymous with heir of line, and heir-general, but differ in this, that they embrace the heir of conquest (i). The flexibility of the terms seems to be very limited. When used in regard to the pertinents or acces- sories of lands, they have in some instances been interpreted by reference to other deeds {k) ; but in special settlements of proper feudal subjects, the technical meaning will prevail, un- less controlled by words occurring in the same deed. Thus the term, heirs whomsoever, will not be interpreted by reference to a prior destination to heirs-male ; but the expression Iteir- male, which is exclusive, employed in another clause of the deed so as to mark intention, will limit their import (/). Express words are necessary to restrict the application of the terra to heirs of the body. Thus a conveyance to A., and his heirs and successors ivhomsoever, xchom failing without a lawful child or children existing of his body, to B., import a right in B. pre- ferable to that of the heirs of A., not the issue of his own body, the meaning of the term, heirs and successors whomso- ever, being controlled by the words which follow (w). (7.) Eldest daughter or eldest son, means the child who is such at the time when the succession opens («). — See, on the subject of this section, the authorities in the note (o). (a) Grant, 29th Nov. 17j7, M. 14.874 ; Cunninghanic, 7th Dec. 1770, M. 14,875. x 2 324 Suc'^tsil } 244. TEIOIS DESCRIPTIVE OF HEIRS. { sf£^^„,_ (6) Carse, 5th Feb, 1717, M. 14,873; Adams, Jan, 1727, M. 14,873, (c) Lockhart, 19th Jan, 1737, F, C, 15 D. 376 aflirmed, (rf) See Dunbar, 24th June 1625, M. 5603, (e) Sinclair, 24th June 176G, M. 14,944, aflfirmed on ap, (/) Hope, (Bargeny case,) July 1738, Elch. Fiov. to Heirs, 2, as reversed in H. of L., Cr, and St. 1. 237. {g) Lyon v. Blair, 19th June 1739, 5 B. S. 663. (70 L. Essex Ker, 13th Nov. 1810, F. C. ; affirmed, 26th Feb. 1812. (0 D. Hamilton, 4th March 1771, M. 4338, 4369, 5 B. S. 467. (A) Hay, 16th Nov. 1698, M. 14,899. (0 Sandford on Success. 1. 192; M. Clydesdale, 26th Jan. 1726, M. 14,930, altered by D. Hamilton, 9th Dec. 1762, M. 4358; Maclaiichlan, 12th Jan. 1737, M. 2312. (m) Tinnoch, 26th Nov. 1817, F. C. See Sutties, 19th Jan. 1809, F. C. (n) Ker, (Roxburghc,) 23d June 1807, M. App. Tailzie, No. 13 ; aflfirmed on ap. ; Shepherd r. Grant, 1st Dec. 1836, F. C, 15 D. 173; aflfirmed, June 1838. (<5) Ersk. 3. 8. 47. et seq. ; Bell's Princ. 1694, et seq. 245. Destinations 1. Institute Conveyances contain- ing a destination in favour of a disponee and a series of heirs are often classed under the general denomination of tailzies ; a terra derived from the French word, tailler, to cut, the le- gal course of succession being thereby interrupted. They contain destinations either simple or with prohibitions, or take the form of the strict entail, to which alone the term entail is in practice applied. The first person called to the succes- sion is styled the disponee or institute, and those postponed to him, heirs or substitutes. An institution may be absolute or conditional. The former is the common case of a direct con- veyance to a particular individual in existence or nasciturus, as the case may be. 2. Conditional institution — (1 .) This term is more com- monly employed with respect to destinations of sums of money than of heritage. Its meaning in feudal conveyancing is by no means precise. By the Civil law, substitutions in most cases resolved into conditional institutions, " and meant no more " than if the institute either died before the granter, or de- " clined to accept of the right, the substitute might take the " succession : But when the institute took up the succession, " the substitution evanished, and the succession, afterthe death " of the institute, devolved not on the substitute, but on the " heir of the institute" (o). In this sense conditional institu- 325 «^"'''^°^ \ 245. D1.STINAT10NS. U^Z^.i Succession. S t Settlement. tion is not received in our law ; the condition must be ex- pressed, and this may be done in either of two forms, by a conveyance by A. to B.,faiU/if/ heirs ofyl.'s bodi/, or equiva- lent terras (J), or hj A. to the heirs of his body, whom failimj, to B. Under these forms B. is styled a conditional institute. (2.) But there is a distinction to be observed between the effects of these two modes of destination. Under the first, B. is a proper disponee, (since to the heirs of A.'s body there is no conveyance,) subject to the condition that these heirs shall fail. Hence, on the existence of an heir of the body of A., such heir will take not under the conveyance but as heir- at-law, and the disposition to B. will be evacuated. A con- veyance, therefore, by K., failing Jieirs of his own body, to B., has the precise effect of the Roman substitution. On the other hand, the latter form of conveyance above exemplified is a conditional institution only in so far as it vests the imme- diate right in B. conditionally, on A.'s dying without issue. The condition being purified, B. is necessarily the disponee or first person in whom the right vests. But when A. is survived by an heir of his body, the right vests in such heir as institute, and B. acquires the character of a proper sub- stitute ; for his right of succession is not evacuated by an heir of the body of A. taking as disponee. There is thus a material distinction between the terms, quibus defcientibus, and quibus non existentibus. A conveyance, therefore, by A, to the heirs of his body, ichom failiny, to B., is not a proper conditional institution, nor has the application of that term to this form of destination been uniform (c). 3. Substitutes (1.) The heirs called to the succession after the institute are styled substitutes. To them the dis- positive words provisionally apply ; in other words, the subject, on the death of the institute, whether prior or subsequent to that of the disponer, passes to the substitutes in their order, without respect of the proper heirs of the institute . unless expressly called to the succession. For example, where an estate is'conveyed to A., ichomfaiJiny, to B., without mention of A.'s heirs, the succession opens to B. on the decease of A. without having altered the destination, to the exclusion of A.'s heirs {d). (i.) The terms of the destination, therefore, form 326 Deeds of 7 245. DESTINATIONS. 5 80^6^ Succession. ) ^ &t,uit,mem. the law of the succession. Thus, under a destination to A. and the heirs of his hochj, in fee, lohoni failing , to B., the latter is preferred to the heirs whomsoever of A. This is one of the simplest forms of substitution. Again, suppose a destination to the heir-male of a marriage, and his heirs and assignees what- soever; ichom failing, to the heir-male of any subsequent marriage of the husband, and the heirs of his body ; whom failing, to the heir-female or eldest daughter of the first marriage, and the heirs of her body, and the heir-male of the first marriage takes up the succession but dies without issue ; in a question between the heir-female of the first marriage and her younger sisters claiming as heirs-portioners of the heir-male, the latter, from the texture of the clause, will necessarily prevail (e). These instances are sufficient to shew the nature of a substitution. (3.) It is material to observe, that (when the destination has not been altered) the right of a substitute is absolute, and that it is the form of completing his title only which is contingent on the vesting of the right in the immediately prior substitute. Thus, under a conveyance to A., and the heirs of his body, ^chom failing, to their heirs, followed by other substitutions if an heir of the body should exist, it is by no means necessary for transmitting a right to his heir whomsoever, that such heir of the body should have made up a title to the sub- jects, or even that a right should have been vested in him by service. The eff"ect of the right not vesting is merely that the heir whomsoever must complete his title by service to A., in place of to the heir of A.'s body (/). (4.) It is now fixed that a branch of a destination may be introduced by the nomi- nation and appointment of the granter, expressed in a separate writ, when power has been expressly reserved in the settle- ment (c/). A substitution of heirs nominandi appears, indeed, to have been usual at an early period, as we learn from Dallas, who embodies the necessary form in the ordinary styles of the entail. Heirs to be named are not more uncertain than heirs nascituri, to be born, and it has never been doubted that these may provisionally be called to the succession. (5.) A substitu- tion is usually marked by the words whom failing, although these are not essential. Thus, a conveyance to A. and his heirs im- plies a substitution to the heirs, who are not joint fiars, but 327 leds of ) ck 4 r t special cession. } 245. DESTINATIONS. \ SctUement. have a bare rij^ht of expectancy and must take by service. Thus, also, under a clause to mijself, and to B., mtj only lawful so7iy and the heirs-male of his lodj/, &c. or to myself and B., and longest liver of us two, in liferent and conjunct fee, for B.'s life- rent use thereof allenarly, and to C. and the heirs-male of his body, tchom failing, &c. B. in the one case, and C. in the other, is a mere substitute {h). % (a) Ersk. 3. 8. 44. Ih) See Stevenson, 24th June 1784, M. 14,862; Leitch's Trustees, 2d June 1826, F. C. (c) See Dickson, 23d Feb. 1697, M. 14,851 ; Forbes, 3d Aug. 1756, M. 14,859 ; Colquhoun, 8th July 1831, F. C, 9 S. 91 1 ; Murray, 21st May 1833, F. C, 11 S. 629. (d) Ersk. as above; Bell's Princ. 1704; Campbell, 28th Nov. 1770, M. 14,949 ; Hailes, 371. (e) Eiehardson, 5th July 1821, F. C. See Lockhart, 19th Jan, 1837, F. C, 15 D. 376. (/) Stair, 3. 5. 51 ; Livingstone, 3d March 1762, M. 15,409, 15,418, af- armed on ap. ; Gordon, 23d Feb. 1791, M. 15,465. (.f/) Murray, 22d June 1774, M. 14,952. (A) rorterficld, 15th May 1821, F. C, and House of Lords, 2 W. S. 369; also 18th Nov. 1829, F. C, 8 S. 16, affirmed, 5 W. S. The clause of desti- nation is in these terms: " Binds and obliges him and his heirs and successors " with all possible diligence upon his own charges and expenses duly and validly " to infeft and seise the said "William Portcrfield liis said son and the said Julian *' Steel spouses and the longest liver of them two in conjunct fee and liferent and " the heirs-male procreate or to be procreate of the said marriage betwixt the " said "William Porterfield and Julian Steel ; whilks failing the heirs-male of " the body of the said William Porterfield of any other marriage whilks fiuling " the heirs-male of the body of the said Alexander Porterfield wliilks failing the " eldest heir-female of the body of the said William Porterfield and tlie descen- " dants of the body of the said eldest heir-female without division whilks failing " the next heir-female successive of the body of the said William Porterfield and " the descendants of the body of the said next heir-female successive all without " division whilks failing uny other heirs of tailzie to be nominated and appointed " by the said Alexander Porterfield by write under his hand at any time in his life- " time in his liege poustie ivhilks failing the eldest lieir-female," Sfc. Sfc. — Strath- more, 1st Feb. 1837, F. C, 15 D. 449. 24G. Construction of destinations — 1. General rule. — It is a general rule in construing technical terms in des- tinations, to take the meaning which the law has bestowed upon the words, without reference to the context or extraneous matter (r/). (1.) Thus, under a conveyance to a son and his heirs-mule and assignees whatsoever, whom failing, to the father's 328 Deoik Ci{ t c^ 1 n i Special SuccSsion. } 246. CONSTRUCTION OF DESTINATIONS. { Settlement. other nearest heirs ; the heir-male (although not of the hody) of the son predeceasing the granter, is preferred to the grant- or's daughters, without regard to prohable intention (h). (2.) Ao-ain, in a destination to A. and B. norninatlm et seriatim, and the heirs-male of their bodies ; whom failing, to C. and his lawful heirs-male ; ichom failing , to the heirs-female ofD.; the term lawful heirs-male being unambiguous, and not limited to issue male or heirs-male of the body, the heir-male general of C. is preferable to D.'s heir-female (c). (3.) Thus, also, where an estate was disponed by A. ^o the eldest son living at the time of his decease, procreated between his eldest daughter B. and her husband, and the heirs-male of his hodg, infee ; toliom failing , to the eldest son of C. and ofD. (the second and third daughters of A.) seriatim, and his heirs-male ; whom failing, to the second son of each of the three daughters seriatim, and his heirs-male ; whom failing, to the heirs-male of the three daughters in the same order of succession ; in a competition between the fourth son of B. and the eldest son of the third son of C, upon the failure of prior heirs, the former was preferred as undoubted heir- male of B. ( '- disponee for payment, or to have him ordained to grant he- ritable security. (3.) As infeftment in fee can be given to only one member of a destination at one and the same time, (above, § 74. 4,) the instrument of sasine will be limited to the institute or disponee ; or failing him, to the substitute who takes by service. TITLE III. DEED OF ENTAIL. 251. Introductory remarks 1. Entails prior to the statute Entails, in the strict sense of the term, are destina- tions protected by certain clauses called irritant and resolu- tive, which, if they do not derive their whole effect from sta- tute, appear at least to have with much hesitation been ad- mitted by our common law. It was naturally a principal ob- ject with a powerful aristocracy to transmit their estates to a lono- line of successors, unincumbered with the debts and oblio-ations of the individual heirs into whose possession they should descend ; and as liferents in perpetuity are unknown to our law, the end to be attained was an effectual mode of restraining the power of alienation inherent in the right of property. - Inhibition, which is a mere personal prohibition, and interdiction, which strikes at deeds granted without the consent of the judicial advisers of the interdicted, were re- sorted to without permanent effect : the former is available only when passing upon onerous deeds, which entails, unless mutual, are not considered to be (a) ; and the latter is subject to relaxation at the discretion of the Judge {h). They were at best but effectual against the persons interdicted or inhi- bited, and failed in restraining a series of heirs. At length the ingenuity of the feudal lawyers of the time invented those clauses styled irritant and resolutive, whereby not only were the debts and deeds of the heir in possession rendered null and ineffectual, but his own right declared to be extinguished, or in law language, resolved, by his contravening the provi- sions of the settlement (c). Sir Thomas Hope, in reference to these memorable clauses, observes {d\ " There is a new form found out which has these two branches, viz. " either « to make the party contractor of the debt to incur the loss <' and tinsel of his right in favour of the next in tailzie, or 335 Deeds of ) 251. INTRODUCTORY REMARKS. j Entail. Succession. ) ( " to declare all deeds done in prejudice of the tailzie by <' bond, contract, infeftment or comprising, to be null of the " law." Of their combined effect he proceeds to give some account ; and he declares his opinion to be, that except in ques- tions with the Crown or the superior, they were valid declara- tions, effectual against the heirs as conditions of the grant, and against creditors-coraprisers, because they cannot have the riirht " nisi cum sua conditione et causa." 2. Statute o/'lGSS {e) But notwithstanding the opi- nion of Hope thus strongly expressed, the effect of the irri- tant and resolutive clauses of the strict entail was long the subject of doubt and discussion, and it was by a narrow ma- jority of the Judges that it was ultimately supported {/). The power of the aristocracy prevented a renewal of the discussion, and procured a statute to be passed, which has proved in its practical operation one of the most stringent ever enacted by the Scottish Parliament. By this act, it is made lawful to tailzie lands and estates, and burden substitute heirs with such conditions as the entailers shall think fit, and to affect the tailzies with irritant and resolutive clauses, so as to restrain the heirs of tailzie from selling, alienating or dis- posing of the lands, or contracting debt, or doing any other deed by which they may be apprised, adjudged or evicted from the substitutes in the tailzie, or the succession frustrated or interrupted. All such deeds are declared null, and the next heir of tailzie may, upon contravention, take up the estate. The statute requires that the irritant and resolutive clauses shall be inserted in the procuratories of resignation, charters, precepts and instruments of sasine relating to the tailzied lands ; and a register is appointed to be kept, wherein shall be recorded the substantial parts of the deed of tailzie. It is farther declared, that the omission to repeat the provisions and irritant clauses in the rights and conveyances of the lands, shall import a contravention against the person guilty of the omission and his heirs, but shall not aflect creditors, or other singular successors contracting in bona Jide with the person infefted in the lands. (rt) Hope, ISIin. Pr. ;•. Tailzies, § 1 1 , e^ scq. See Chapman v. Biyson, 22<1 Jan. 1760, M. 15,511, 5 B. S. 873 and 940. 336 Deeds of > 251. INTRODUCTORY REMARKS. j Entail. Succession. ) f- (Z') Balfour, v. Interdiction^ c. 6. (c) They arc generally ascribed to Sir Thomas Hope, who is said to have ad- vised the first strict entail, that of the lands of Calderwood. See 3 B. S. 168, 170, (d) Hope's Min. Pr. v. Tailzies, § 18. (e) 1685, c. 22. Our Sovekaine Lord with advice and consent of his Es- tates of Parliament statutes and declares that it shall be lawful to his Majes- tie's subjects to tailzie their lands and estates and to substitute heirs in their tail- zies with such provisions and conditions as they shall think fit and to affect the saids tailzies with irritant and resolutive clauses whereby it shall not be lawful to the heirs of tailzie to sell annailzie or dispone the saids lands or any part there- of or contract debt or do any other deed whereby the samen may be apprised adjudged or evicted from the others substitute in the tailzie or the succession frustrat or interrupted Declaring all such deeds to be in themselves null and void and that the next heir of tailzie may immediately upon the contravention pursue declarators thereof and serve himself heir to him who died last infeft in the fee and did not contraveen, without necessity anyways to represent the contravcener, It is always declared that such tailzies shall only be allowed in which the foresaid irritant and resolutive clauses are insert in the procuratories of resigna- tion, charters precepts and instruments of seasine, and the original tailzie once produced before the Lords of Session judicially who are hereby ordained to in- terpose their authority thereto and that a record be made in a particular Regis- ter-book to be kept for that effect wherein shall be recorded the names of the maker of the tailzie and of the heirs of tailzie and the general designations of the lordships and baronies and the provisions and conditions contained in the tailzie with the foresaid irritant and resolutive clauses subjoined thereto, to re- main in the said Register ad perpeiuam rei memoriam And for which record there shall be paid to the Clerk of Register and his deputes the same dues as is payd for the registration of seasines and which provisions and irritant clauses shall be repeated in all the subsequent conveyances of the said tailzied estate to any of the heirs of tailzie And being so insert his Majesty with advice and consent foresaid declares the samen to be real and effectual not only against the con- traveeners and their heirs but also against their creditors comprysers adjudgers and other singular successors whatsoever whether by legal or conventional titles. It is ALWAYS HEREBY DECLARED that if the saids provisions and irritant clauses shall not be repeated in the rights and conveyances whereby any of the heirs of tailzie shall brook or enjoy the tailzied estate the said omission shall import a contravention of the irritant and resolutive clauses against the person and his heirs who shall omit to insert the same whereby the said estate shall ipso facto fall accresce and be devolved to the next heir of tailzie but shall not militat against creditors and other singular successors who shall happen to have con- tracted i>r>«a/(/e with the persons who stood infeft in the said estate without the saids irritant and resolutive clauses in the body of his right. And it is further DECLARED that nothing in this act shall prejudge his Majesty as to confiscations or other fines as the punishment of crimes or his Majesty or any other lawful superior of the casualties of superiority which may arise to them out of the tail- zied estate but which fines and casualties shall import no contravention of the irritant clause. (/) Stair, 2. 3. 58 ; Stormonth, 26th Feb. 1662, M. 13,994. 337 Deeds of Succession, [ 252. (JKNEliAL STRUCTURE. j Entail. 252. General structure — (1.) The strict entail is thus a settlement of lands on a particular series of heirs, made permanent by statutory clauses, and not existing indepen- dent of statute (a). In so much is it the creature of sta- tute, that the ordinary feudal rules are suspended in their application to a tailzied fee, when their operation would bring subjects under the fetters of an entail by implication. Thus, resignation ad remanentiam^ in the hands of the pro- prietor of a tailzied superiority, does not consolidate the domi- nium utile with the dominium directum, to the effect of bring- ino- the former under the restraining clauses of the entail. The procuratory, vmder which the resignation is effected, must form a substantive tailzie, and be registered under the statute. Nor is it an exception to this rule that a renuncia- tion or resignation ad remanentiam of a redeemable rio^ht operates in favour of the heirs of entail : rights in security are mere burdens on the fee, which may be extinguished by renunciation, or even by payment or intromission (b). (2.) As respects the destination, the description of the lands and the feudal clauses, reference is made to the disposition of sale, and the special disposition and settlement. (3.) The restrain- ing clauses have generally received a strict interpretation, and ought to be framed witb care, but there is no peculiar intricacy in their construction. To prepare a binding deed of entail is a task not of any real difficulty to the conveyancer who prefers the usual and acknowledged style to an untried phraseology of his own ; and the observation so often repeated, that liti- gation in regard to deeds of conveyance is generally caused by a neglect of simple rules, is very applicable to the present subject. It is observed by a learned author (c), that there are no voces si(/)uitce, — no formal and indispensable words requisite to the efficacy of the irritant and resolutive clauses ; but it was the opinion of the majority of the Court, in March 1833 (il), that there are certain technical words in general use, some of which arc essential in the clauses of limitation. Yet it is nowhere stated with precision what those essential words are. The practical lesson to be derived from this state of uncertainty plainly is, to trust solely to the approved and accustomed forms of style. (4.) Much variety of expression is V 338 Deeds of ) 252. GENERAL STRUCTURE. 5 Entail, ouccession. y i employed in designating different branches of the entail. Thus the clauses which in statutory language are called prohibitions, are often styled fetters and limitations, and although these words may be sufficiently descriptive of their nature, it is re- commended, in framing deeds of entail, to employ the statu- tory term prohibitions. The terms, restraints or restrictions, and restraining clauses, seem to comprehend all those parts of the deed, (conditions, provisions, prohibitions, irritant and resolutive clauses,) whereby the powers of the members of tailzie, as fiars, are restrained or lessened (e). (a) See Lord Meadovvbank, in Hamilton, 3d March 1815, F. C. (J)) Heron, 27th April 1733, Cr. and St. 1. 198; Galbraith, 14th Jan. 1814, F. C. ; ^yauchope, 14th Dec. 1813, F. C. See Fairlie, Uth July 1827, S. (c) Bell's Princ. 1732. (rf) See opinion of Lords Glenlee and other consulted Judges in Vere, 7 th March 1833, F. C, and (3th March) 11 S. 520; affirmed, 14th July 1837, 2 S. and M'L. (e) See Lawrie, 19th June 1744, 5 B. S. 733. 253. Rules of construction. — (I.) The rules for con- struing the restraining clauses in deeds of entail have unfor- tunately been far from uniform, either as respects the Court of Session or the House of Lords. The ancient rule was that of strict interpretation, as we learn from all our writers. Even Craig [a), an admirer of feudal greatness, observes, *' quod licet maxima nobilitatis j)ars et sentiat et cupiat nostra " tamenjure tallicB odiose reputantur et strictissimam interpre- " tationem recipiunt," and yet in his time limitations in their modern strictness were unknown. In like manner, Stair re- gards tailzies as most unfavourable and inconvenient {h) ; and Erskine describes them as imposing an unfavourable restraint upon property, and becoming frequently a snare to trading peo- ple, and therefore as strictissimi juris (c). The early decisions of the Court, it is true, were not uniformly in accordance with this notion ; but the court of last resort, in reversing the judg- ment in the Duntreath case (r/), followed the opinion of our in- stitutional writers, and discouraged the practice which had begun to prevail of ^w'mg fair play to the entail, by applying the rule of probable intention in opposition to that of strict 339 Deeds of ) 253. RULES OF CONSTRUCTION. ^ Eiilui bucccssion. ) I interpretation. This tendency had scarcely been checked when the Court of Appeal, in their turn, deviated from this rule, by giving a meaning to the word dispone, in a large class of cases respecting leases of unusual endurance, which it does not bear in Scotch law language, thereby drawing closer the fetters upon the heir in possession; (below, § 272. 5.) The Court below have, in these circumstances, unavoidably hesita- ted between the two rules of interpretation, sometimes dealing strictly with the restraining clauses, in other instances giving ffiir play to the deed ; but at length the strict rule seems to be finally adopted {e). Examples of the effects produced by the uncertain notions which have prevailed will frequently occur in the course of these observations. (2.) The principle of strict interpretation means, not merely that without direct words limitations cannot be imposed on the members of tailzie from presumed or implied intention ; but that, even where there are words within the deed having a certain tendency to indi- cate the intention of the entailer, they may, under the strict rule of construction, foil of effect either from want of technical precision, or from error in the form and manner in which they are introduced. (3.) Strict construction maintains not mere- ly in questions with third parties, creditors or disponees, but even infer hceredes — amongst the persons called to the succes- sion, with relation to those clauses of the deed which impose restraints on the right of property (/"). (a) Craig, 2. 16. 12. {b) Stair, 2. 3. 58. (c) Ersk. 3. 8. 29. (d) Edmoiistonc, 24th Nov. 1760, M. 4409. (e) See Spcid, 21st Feb. 1837, F. C, 15 D. 618; and note and opinion of Lord Corehouse. (/) See opinion of Lord Glcnlee and other consulted Judges in Yore, "tli March 1833, F. C, and (5th March) 11 S. 520; affirmed, 14th July 1837, 2 S. and M'L. 254. Form of the deed (1.) An entail may be in the form of a disposition, unilateral or mutual, or of a procuratory of resignation ; or it may be embodied in a marriage-contract. The form of the disposition is probably the best, as warranting immediate infeftmcnt without the necessity of entering with Y 2 340 fceSion. } 254. FORM OF THE DEED. | Entai the superior, which that of the procuratory of resignation im- plies ; and although it is inconsistent with the nature of fees that one should he his own vassal hy original constitution, a rule which is illustrated hy the practice in creating freehold votes under the old system, there is no feudal incompetency in a party granting warrant for his own infeftracnt by a hold- ing a se cle snperiore sua, since a precept warranting a public infeftment is validated by the subsequent confirmation of the superior. Nevertheless, the deed of entail, when in the form of a disposition, in practice contains an alternative holding, even where the entailer conveys in his own favour as insti- tute {a). (2.) But, in whatever shape it is executed, it is essential to the deed as a strict entail, that it contain proper prohibitive, irritant and resolutive clauses, directed against the disponee or institute, and the series of heirs expressed in the destination, as well as the particular acts which they are forbidden to commit. But there is no fixed rule as to the place or form in which they must stand in the deed. It is not even essential that the clauses should be contained in the entail itself, although, under the statute, they must, in order to render it effectual against creditors and disponees, be in- serted in the investitures following on it. An entail may be validly constituted (although such a form is not to be recom- mended in practice) by declaring that the lands shall be taken and held under all the conditions, and the prohibitory, irritant and resolutive clauses, expressed in an entail of other lands already completed by registration (b). In such cases it is necessarily implied, that the clauses in the deed to which reference is made cannot be taken word for word, applicable as they are to other lands, and probably to a different series of heirs. (3.) The statute makes mention of procuratories of resignation, charters, precepts and instruments of sasinc. The first and third comprehend all the deeds by which a tailzie may be constituted. Thus, it is common to frame an entail in the simple form of a procuratory of resignation. To that case the statute directly applies ; but when the procuratory or precept is contained in the body of a disposition of entail, it is not necessary to repeat the restraining clauses as contained in some other branch of the deed, in either clause. All the 341 Deeds of ? 254. FORM OF THE DEED. I Knlail, Succession, j ( clauses of a deed arc understood to be embodied in every other part of the same deed (c). Thus, it is not a valid ob- jection to a deed of entail, that the limiting clauses are in- troduced before the destination, if it be clearly expressed that they shall apply to the whole series of heirs (d) ; and in a charter of resignation following on a procuratory contained in a deed of entail, it is sufficient that the restraining clauses are engrossed in the qucequidem, as forming a burden on the resignation, although not even referred to in the dispositive clause. Such a reference, however, it was assumed, would have been essential in the deed of original constitution (e). (a) Jurid. Styles, 1. 228, 240. (h) Don, 14th July 1713, M. 15,591; Robertson's Ap. 7G ; Lawi-ie v. Spalding, 24th July 1764, M. 15,612. See opinion of Lord Glenlec and other consulted Judges in Vcre, 7th March 1833, F. C., and (5th March) 11 S. 520; atlirmcd, I4th July 1837, 2 S. and M'L., correcting EroomQeld, 29th June 1784, M. 15,618. (c) Sec Murray Kynnynniound, 5th July 1744, M. 15,380. (d) Innes, 23d June 1807, M. App. v. Tailzie, No. 13; affirmed. (e) Vere, as above. 255. Clauses of the entail The form most conve- nient for reference is that of the unilateral disposition. It contains the following clauses, • twelve in number, viz. The narrative; dispositive ; obligation to i'lfej^; procurator// oj" resig- nation, in which are usually introduced the conditions, pro- hibitions, irritant and resolutive clauses, declarations and provisions of the tailzie ; assignation to the icrits and rents ; obligation to free the heirs of debts ; reserved power to alter ; dispensation 2cith the delivery ; procuratory for registration ; clause of registration ; precept ofsasinc, and testing clause. 256. Narrative [a) — (1.) The narrative or introductory clause contains the name and designation of the entailer. When feudally vested with the fee, he will be described as heritable proprietor. But it is not essential that his title should be feudalised : it is enough that he have the power of disposal, so as to be enabled to confer a right on the substi- tutes to obtain a title in a question with the entailer's legal heir, or with trustees; and thus a personal right to lands, 342 Dccdsof 7 256. NARKATIVE. j Entail. Succession. ) ( either under a direct conveyance or service as heir, is suffi- cient ; but it seems essential to the application of the fetters, that the settlement be special, and not merely of lands to be acquired (b). (2.) It is frequently a question of importance if the title of a party desirous to execute an entail gives him the power of disposal, or of imposing additional restrictions on the right of property. Thus, one who has already, by an onerous deed, settled his estate upon a particular heir or heirs, is tied up from adding to the destination, or fettering the heirs, unless he has reserved a power to that effect. ( See Marriage-Contract.) The same restraint lies on a proprietor under a conveyance which contains a prohibition against alter- ing the course of succession, (above, § 248,) and consequently on a member of a strict entail other than the last substitute (c) ; (below, § 266. 7.) (3.) An heir in apparency making an entail, but dying before his title is completed, transmits no valid obligation against his heir ; but the heir will be bound by the entail at common law, if he should serve to the en- tailer ; and if the entailer had been in possession for three years, the heir will incur obligation under the statute, if he should pass him by, and serve to a remoter ancestor (d) ; (above, § 138. 2.) (4.) This clause recites also the cause of granting or consideration, which is the wish of the entailer to perpetuate his name and family. In a mutual entail the con- sideration is onerous, viz. the conveyance by each party to the series of heirs chosen by both. (a) I A. heritable proprietor of the lands and others after described for the better preservation of my family and memory and for certain other weighty causes and considerations moving me. (i) Renton, 5th Dec. 1837, D. See Livingstone v. Napier, July 1762, 5 B. S. 888; Grant, 23th Jan. 1769, M. 13,422; Stirlings, 15th Dee. 1801, 31. 15,455. (c) Mcnzies, 5th June 1785, M. 15,436; Hailes, 169. See Reay, 25th Nov. 1823, 2 S. 520; affirmed, W. S. 1. 306; Stewart v. Porterfield, 24th May 1826, W. S. Ap. 2. 369, and 13th Nov. 1829, F. C, and (18th Nov.) 8 S. 16; affirmed, 23d Sept. 1831, W. S. 5, See Meldrum, 29th June 1827, 5 S. 857. (d) 1695, c. 24, above, p. 206. See Carmichacl, 15th Nov. 1810, F. C. 257. Dispositive clause (a) — This branch of the deed contains the destination framed according to the wish of the 313 Deeds of ) 207. DlSl'OSITIVE CLAUSE. j Entail. Succession. ) t party, (§ 245,) and the lands, under a reference to the con- ditions, provisions, reservations, and restraining clauses, as expressed in an after part of the deed. (1.) This clause is the ruling clause of the deed, and may be referred to for the ])urpose of explaining, or even limiting the executive or feudal clauses. Thus, where the dispositive clause was in favour of the entailer's eldest son and the heirs-male of his body, but in the procuratory of resignation new infeftment was warrant- ed to the eldest son and the heirs of his body generally, the terms of the dispositive clause received effect {b). (2.) Under hnids and estates, in the sense of the statute, are included rio-hts of property only, and not heritable debts, even those secured by adjudication, unless where the right of the ad- judger has been feudalised, and the legal is expired, whereby it becomes a good prescriptive title, limited only by the right of redemption in the debtor (c). Burgage subjects may _be validly entailed {d). (a) Have given granted and disponed as I do hereby with and under the conditions provisions prohibitions clauses irritant and resolutive declarations and reservations after specified give (!KA:«t and dispone to myself and the heirs-male of my body whom failing (the substitution) whom failing to any per- sons to be named by me in any deed of nomination or other writ to be made and executed by me at any time during my life ; and failing of such nomination or of the persons so to be named and their heirs then to my own heirs whom- soever and their assignees the eldest heir-female and the descendants of her body excluding heirs-portioners and succeeding always without division through the whole course of the female succession all and whole (the lands) with all right title and interest whatsoever which I my predecessors or authors had have or may anywise claim or pretend to the lands and others above dis- poned or any part thereof: But always with and under the conditions provi- sions prohibitions and clauses irritant and resolutive declarations and reserva- tions after written. Note The above clause is an example of an institution of the entailer himself, which is a frequent form of the entail. (V) Forrester, II th July 1626, F. C, 4 S. 824. (c) Dalyell, 17lh Jan, 1810, F. C. (d) Maclauchlan, 27th Jan. 1768, M. 13,421; Dillon, 14th Jan. 1780, M. 15,432. 258. Obligation to infeft {a): — The entailer here binds himself in ordinary form to infeft the institute, (whether the entailer himself or another,) and the heirs of tailzie named and described in the dispositive clause, under a similar reference to the future clauses. 344 Deeds of 7 258. OBLIGATION TO INFEFT. j Entail, buccession. ) ( (a) In which lands aud estate above disponed with the pei'tinents I BIND and OBLIGE me and my lieirs and successors whomsoever witliout the benefit of discussing tliem in order to infeft myself and the heirs-male of my body whom failing the other heirs of tailzie above mentioned with and under the conditions provisions proliibiiions clauses irritant and resolutive declara- tions and reservations after specified and that by two several inf'cftments &c. 259. Procuratory of resignation {a) In this clause the destination is usually, although, as regards the validity of the tailzie, not necessarily repeated {b) ; but, as resignation must proceed, and a charter be framed in the precise terms of the procuratory, (see § 154. 4.) the latter usually contains the full destination. The conditions, provisions and restraining clauses of the deed, likewise, are In practice annexed to the procuratory, as burdening the resignation of the fee into the hands of the superior. The practice in this respect seems to have originated in the old feudal rule, that the consent of the superior was essential both to the constitution and the altera- tion of a tailzie, and that resignation was the most direct mode of evidencing that consent (c). (a) And for accomplisliing the said infeftment by resignation I hereby con- stitute and appoint and each of them jointly and severally my lawful and irrevocable procurators giving granting and committing to them full power and warrant for me and in my name to eesign &c. (in usual fonn) for new infeftments of the same to be given and granted to myself and the heirs- male of my body whom failing (s^distitution repeated) heritably and irredeemably But always with and under the conditions prohibitions clauses irritant and resolutive provisions declarations and reservations after written. (6) See Murray Kynnynmound, 3th July 1744, M. 15,380. (c) See Craig, 2. 17. 20-1. 260. Conditions of the tailzie Here commences the statutory branch of the deed. The statute permits proprie- tors to tailzie their lands under such conditions as they shall think fit. Conditions imply certain acts which the persons favoured by the entailer are required to perform, in contra- distinction to those which they are forbidden to commit by a future clause containing pj'ohibitions ; and they are interpreted according to the fair meaning of the terms {a). The most frequent conditions in the modern entail will be noticed in their order. («) More's Notes on Stair, clxxxiv. 345 Dectls of ) 2G1. CONDITION TO BEAR NAME, &C. 1 Entail ouccessioii. } 'I 2G1. Condition to bear name and arms («) A con- dition to bear the family name and arms seems to be binding independent of statute {b.) Where a distinctive coat of arras has not been already assigned by lawful authority to that par- ticular branch of the family which comprehends the entailer, this condition imports an obligation on the institute, or heir in possession, to follow out the wishes of the entailer, by ob- taining from the Lyon arms of the same general character with those expressed in the condition, descendible to the heirs of entail (f). The neglect of this condition is hurtful only to the contravener. (a) With and under this condition always as it is hereby expressly provided that my said whole heirs of entail above written shall be bound and obliged constantly to bear use and retain the surname of A, and arms and designation of A. of C in all time after their succession to or obtaining possession of my said lands and estate as tlieir proper surname arms and designation. (The word only 7cill be vscd if it is intended to prevent the heirs from hearing any other name and arms.) Note. — It will be observed, that the above clause relates to an institution of the entailer himself. "Where another is disponee or institute the condition will be directed against the said B. and the heirs of entail above written. The same observation applies to the clauses quoted in some of the future notes. (6) Stevenson, 2Gth June 1677, M. 15,475. (c) Moir, 5th Feb, 1794, M. 15,537. 262. Conditions to record, &c. (a). — (I.) The condi- tions to record the entail in the register of entails, and to complete a title under it by infeftment, are steps essential to the right in questions with third parties, the former as being a statutory, and the latter a feudal requisite ; but they are not so inter Imredes, amongst the members of the tailzie, who are bound by the quality of their own title (i). (2.) These con- ditions embrace the most essential requisites of the tailzie, and ought to be especially in the view of the conveyancer both in the preparation of the deed, and the conqdetion of the right. The necessity of registering the deed on the one hanil, and feudalising the right on the other, illustrates, in the clearest manner, the operation of the influences which it is the ob- ject of these forms to combine, and thus make subservient to the purposes of the entailer. Until registration the statu- tory conditions are disregarded, and without infeftment the 346 Deeds of 1 262. CONDITIONS TO RECORD, &C. {Entail. Succession. ) t feudal rules are not fulfilled. A combination of the statu- tory and feudal forms is thus required to make the strict en- tail a perfect right. But this effect, although best illustrated by reference to the essential forms of registration and infeft- ment, is not produced by these alone. It is manifest that re- gistration, to have any force, must be of a deed framed in the terms of the statute. The clauses must thus be perfect, and duly directed against the parties whom it is intended to re- strain. (3.) It does not appear to have been formally decided, that a deed of nomination of heirs executed in virtue of a power reserved by the entailer, must, in order to receive effect, be recorded in the register of tailzies ; but it is probable that the terms of the statute would be held to apply to it. The point, it is understood, was indeed so ruled by the Lord Ordinary in the Porterfield case (c). There seems a marked distinc- tion between such a deed and the judicial or quasi judicial forms by which an heir nasciturus takes up the succession after coming into existence. Such heir is described in the destination by technical language, and his place in the tailzie clearly marked out ; but a substitute nominandus has no legal existence unless under the deed of nomination. (4.) Regis- tration in the books of Council and Session is useful for pre- servation only The following cases will shew the propriety of the substitute heirs exercising their right to enforce these conditions. 1. Entail registered hut not feudalised — (I.) When the member in possession is heir of the last investiture, he may brinf the estate to judicial sale for payment of the entailer's debts {d), or the creditors of the heir may attach it by special charge and adjudication (e) ; and as special charge is equi- valent to special service, such heir may complete a title clear of the limitations of the entail, and grant a valid conveyance to a purchaser (/). But although the heir of the former in- vestiture, neglecting to complete a title, should have possessed on apparency for three years, his debts, (with the exception of those with which the entail gives power to charge the es- tate, e. (J. provisions to children) will not affect the estate un- less made real by adjudication during his lifetime, and the next heir may complete a title under the entail without in- 347 DcoJs of ) 2G2. CONDITIONS TO RECOllU, &C. ] Enlail. Succession. ) I curring liability under the statute of 1695 [fj) ; fur, as credi- tors would have unquestionably been excluded by a title made up under the entail, they cannot acciuire a better position as regards the next heir, by the member in possession disre- garding the entail (/i). (2.) When, on the other hand, the institute, or member succeeding, is not heir of the last in- vestiture, but a stranger, the rule is different. His right being solely grounded on the entail, he cannot sell the estate, nor may his creditors attach it, unless under all the qualifi- cations of the right ; their diligence will thus affect no more than the liferent of the member in possession. The rule was first applied to entails in the House of Lords, on the o-round that the statute comprehends those entails only on which infeftment has followed (/) ; but it is now established on the general principle which regulates the transmission of per- sonal rights (/i). (3.) It follows, from the doctrine establish- ed by the cases last referred to, that so long as his title continues personal, the member in possession, although heir of the last investiture, cannot, by voluntary deed, alienate or burden the estate (/) . 2. Entail feudalised but not recorded — (1.) If the en- tail has been merely feudalised and not also recorded in the register of entails, the conditions of the statute have been dis- regarded. The member in possession may sell the lands (m), or they may be adjudged by creditors {n). And it is no bar to the diligence of creditors that the entail is recorded, provided the debts upon which it proceeds were contracted before the registration (o), even although decree of irritancy on the ground of contravention has preceded the diligence {]>). Nor does it appear that future heirs can maintain an action for damages against a member contravening the provisions of an unregis- tered entail, since the substitutes having themselves the power to enforce the condition, it cannot bo neglected without their participation ((/). (2.) But where the entail is a nmtual and onerous deed, it becomes effectual when feudalised, although remaining unrecorded, to exclude creditors whose debts have not been made real before infeftment, if contracted after the date of the entail (/•). 348 Dof 260. PERSONS RESTRAINED. | Entail. Succession. ) ( heirs-female will of itself void the tailzie. Tailzies are not necessarily evacuated by containing within themselves the ele- ments of their extinction, but are effectual so far and so lonj; as they apj)ly to the members, as sole proprietors, in the order of the destination ; and although the fetters will necessarily fly off when the estate descends by the operation of the law to more than one individual, they continue binding whilst the destination supplies an heir who has or may have a successor entitled as a proper substitute to enforce their operation'(m). 6. Heirs whomsoever — After the last member of the destination the entailer usually calls to the succession his owti heirs whomsoever, or those of the last substitute. Originally it would appear that a destination to heirs-male of the body, called a male fee, was understood by the term feudu7n tallia- tum (?«), in contradistinction to feudum simplex, which de- scends to heirs whomsoever. We learn also from Craig, deji- cientihus hceredibus in tallia contentis feudum ad dominum re- dire, etiamsi de hoc nulla fuit mentio ; and afterwards when the Crown came in the place of the superior, it was not as dominus, but as ultimus hares, upon the failure of a destina- tion to heirs-male, to the exclusion of heirs whomsoever (o). Thus, although Craig's definition of a tailzie is too limited for modern notions, it indicates the origin of the term heirs whom- soever, as employed in the close of a destination. For as tailzies were thus at first limited to male succession (/»), the destination was made to terminate on the heirs-male tcliom- soever of the maker, or of the last substitute, in order to exclude the superior (q), and that term naturally changed into heirs whomsoever, when it was no longer usual entirely to debar the succession of females. The term heirs whom- soever became thus a mere expression of style to denote a fee-simple in the person of the heir of line, after the failure of the substitutes in the tailzie, so as to exclude the fisk, and was not construed as adding a branch to the destination (r). This interpretation was followed in a case decided soon after the enactment of the statute, in which it was found that a tailzied fee becomes simple, when it terminates on the heirs and assignees of the grantor {s). 7. Last substitute. — A consequence of the fetters 354 o ®'^^^" I 266. PERSONS RESTRAINED. | Entail. Succession. 3 I being inoperative against heirs whomsoever, is the freedom of the last substitute in the tailzie. As the heir whomsoever of the grantor or of the last substitute is not an heir of tailzie, and thus not a creditor in the conditions of the entail, in which character only is it competent to complain of an act of contra- vention, he has no title to pursue declarators of forfeiture against the last substitute, who may thus with impunity sell or burden the estate, or gratuitously dispose of it at pleasure (0. As the same principle applies to any member of the destination against whom the limitations cannot be enforced, the institute, on the predecease of all the substitutes, may in like manner exercise the powers of a fee-simple proprietor (u). (a) Dallas, 659-60. (ft) Ersk. 3. 8. 24. (c) Ersk. as above; Bell's Piinc. 1747. (d) Gordon, 23d Feb. 1791, M. 15,463. See Livingstone, 3d March 1762, M. 15,418. (e) Wellwood, 23d Feb. 1791, M. 15,463 ; M. of Titchfield, 22d May 1798, M. 15,467, affirmed; Miller, 12th Feb. 1799, M. 15,471. (/) Wellwood, as above. Iff) Logan, 20th Dec. 1836, F. C, 15 D. 291, (under appeal.) (/() Ersk. 3. 8. 44; Bell's Princ. 1746. (i) Mackenzie, 24th Nov. 1818, F. C. ; affirmed, Shaw's App. 1. 150. Here the deed contained a clause dispensing with the delivery. {k) See Glenw. Peacock, 15th Feb. 1821, Sandford on Entails, p. 149. This case seems to be the same with that of Peacock i\ Glen, 22d June 1826, F. C, 4 S. 742. (I) Ersk. 3. 8. 32; Mure, 6th Feb. 1823, n. r., noticed in Mure below; E. March v. Kennedy, 27th Feb. 1760, M. 15,412; Sprot, 22d May 1828, F. C, 6 S. 833; Hunter, 11th Dec. 1834, F. C, 13 S. 183. (w) Mure, 16th Feb. 1837, F. C, 15 D. 581 ; affirmed, June 1838. («) Craig, 2. 16. 3 and 19. See Ersk. 3. 8. 21. (o) Somervell, 23th July 1G88, M. 2949. (/}) Craig, as above ; Balfour, voce Brieves, c. 9. (ry) Craig, 2. 16. 19. (>•) Stair, 2. 3. 43 ; Ersk. 3. 8. 32 ; Lord Corehouse in Mure, as in («*). {s) Leslie, 15th Dec. 1710, M. 15,358; E. March, 27th Feb. 1760, M. 15,412. (<) Ersk. 3. 8. 32. See Denham, B. S. 5. 623 ; E. March, as above. lu) Henry, 13th June 1832, F. C, 10 S. 644. 207. Terms descriptive of the institute — In imposing the conditions, provisions and fetters of the entail upon the persons called in the destination, the ambiguity of expression which has occasioned so much litigation has generally arisen 355 ^::^.\ 267. THE INSTITUTE. { E.Uail. from the use of descriptive words not sufficiently comprehen- sive. (1.) In an early instance, the distinction between the terms institute and heir was disregarded, the intention of the entailer to fetter the institute being manifest from the terras of the entail [a) ; but the strict rule of interpretation led after- wards to a different result. (2.) Thus in an entail where the destination was in favour of the granter's second son, and the heirs xchatsoever of his hodij, whom failing, l^'c, and the re- straining clauses were directed simply against the heirs of tailzie and "provision, the Court, disregarding the argument from probable intention, held that the son as disponee, and therefore not comprehended within the term heirs, was un- limited fiar of the estate {h). In a later case, the intention of the entailer received effect. The institute or disponee was described as an heir, which left no doubt as to the pur- pose of the entailer ; but the decision was reversed on appeal, on the special ground, that " the appellant being fiar or dis- " ponee and not an heir of entail, ought not, by im})lication from " other parts of the deed of entail, to be construed within the " prohibitory, irritant and resolutive clauses laid only upon " the heirs of tailzie " (c). (3.) The rigid rule of interpreta- tion being thus sanctioned by the authority of the Court of last resort, the result in future cases came therefore to depend on one of two questions, whether the party maintaining his freedom from the fetters was truly the institute or disponee ; or whether, being the institute, the terms employed in the re- straining clauses with reference to the members of the tailzie, did or did not comprehend him in that character. The for- mer question has occurred in a numerous class of cases, and the Court, in judging of the distinction between an institute and an heir, have uniformly disregarded relationship, as well as the mere form of the deed, and held that party to be the disponee or institute to whom the estate is first destined in fee, whether he be the heir of line of the entailer or a stran- ger, and whether the tailzie be constituted in the strict form of a disposition, or in that of a procuratory of resignation {(T) ; (above, § 254.) (4.) With respect to the terms proper for describing the institute, the circumstances have in different instances necessarily varied. Thus the terms, heirs avd 350 Deeds of ) 267. THE INSTITUTE. 1 Entail. Succession. ) t members of tailzie, were held not to comprehend the institute, who in one clause was put in opposition to heirs and mem- bers (e). And it has in recent cases been uniformly held, that the clearest indication of an intention to fetter the per- son who is the undoubted institute or disponee, but expressed so as to refer to him as an heir of tailzie, is not enough to bring him within the scope of the restraining clauses (/). But as it is only necessary to employ terms sufficiently com- prehensive, the words, person or persons heirs of tailzie fore- said, used with reference to the institute and substitutes, as contained in prior clauses of the deed, were construed to em- brace both {g) ; and a similar interpretation was given to the words heir or person so contravening, occurring in the resolu- tive clause, with reference to prior clauses wherein the insti- tute was named (A). Thus also the term, heir-male of the granters lody, used in relation to his eldest son as the insti- tute, has, although followed by the words, other heirs of tailzie, received its proper and technical application to the eldest son ; but such interpretation has not been given to the general ex- pression, heirs of the body (i). («) TViUison, 26th Feb. 1726, M. 15,458. (b) Erskines, 14th Feb. 1758, M. 4406. (c) Edmonstone, (Duntreath case,) 24th Nov. 1769, M. 4409; as reversed, 1.5th April 1771. (d) See Balfour, v. Warrandice, c. 27. (e) Steele, 12th May 1814, F. C. ; affirmed, Dow, 5. 72. (/) Morehead, 2d July 1833, F. C, II S. 863, as reversed, 31st March 1835, 1 S. and M'L, 29; Elibank, 2d July 1833, F. C, 11 S. 858; affirmed, 19th March 1835, 1 S. and M'L. 1 ; Brown, llth March 1837, F, C, 15 D. 837 ; affirmed, Jan. 1838. {(/) Syme, 27th Feb. 1799, M. 15,473. (/() Douglas, 14th Nov. 1823, F. C, 2 S. 487; affirmed, W. S. 1. 323. See Bauch, 14th Jan. 1834, F. C, 12 S. 279; Buchanan, 25th Jan. 1838, 16 D. 358, and note to Lord Cuninghamc's interlocutor. («■) See Bauch, as above, and opinion of consulted Judges, in Brown, as above. 268. Terms descriptive of the heirs — The clauses of the entail must, in distinct terms, be directed against the heirs or substitutes. But few questions have occurred in refe- rence to the description of the heirs, who, as forming the lead- ing branch of the destination, are necessarily in the view of the 357 ^e^<^*on 268. THE IIEIIIS. J^'itail icccssion. ) (. framcr of the deed. (1.) ^ difficulty may sometimes, how- ever, arise, from the inaccurate use of terms descriptive of the species of heirs intended to be fettered. Thus, where an estate was destined by the entailer, (failing a prior series of heirs,) to his grand-dauglder A., and the heirs-male to be laiv- fully procreated of her hody, ivhom failing^ the heirs-female to be procreate of her hodij^ &c., and the prohibition to alienate was directed against the heirs in this latter branch of the des- tination, as the heirs-female of the maker of the entail, the heir-male of A. succeeding under the express destination to her heirs-male, was held not to be comprehended under the general term heirs-female as used in the prohibitory clause, notwithstanding that he was, in technical language, an heir- female («). (2.) The character impressed by the deed cannot be aflected by the form in which an heir completes his title. Thus, a member of tailzie described as an heir, taking the estate as a judicial disponee under an adjudication in imple- ment of a decree obtained for enforcing a clause of devolution in his favour, does not thereby lose the character of heir or substitute, so as to be entitled to maintain that the fetters do not apply to him {li). Nor does an entry by declarator, in place of service, alter the status of an heir (c). (a) Dalzell, 30th May 1809, F. C. (i) Henderson, 12th Nov. 1796, M. 15,442. (c) Sec Mackenzie, 24th Nov. 1818, F. C. 260. PiiACTiCAL RULES The rules deducible from the cases noticed in § 267-8, seem to be these: (1.) In direct- ing- the conditions and the other clauses of the deed against the institute and heirs of tailzie, caution must be used in framing a general description. Thus, the xchole persons, or heirs and persons, or any of the persons foresaid, or mij said disponee and the heirs of tailzie foresaid, appear to have been held sufficiently comprehensive. (2.) In practice, it is more usual to repeat the name of the institute, when he is in exis- tence, followed by the words, and the heirs of tadzie foresaid, (not of course the other heirs,) at the commencement of each of the clauses which come after the destination. Where, again, the institute is unborn, the most correct form of expression 358 Deeds of) 269. PRACTICAL RULES. J Entuil Succsssion. J ( seems to be, the said heir-male of my body, (or other words dis- tinctly descriptive of the institute,) and the heirs of tailzie fore- said. (3.) If the entail is mutual or for onerous causes, the fetters may be imposed on the entailer. (4.) As there is no form of words by which heirs-portioners can be subjected to the fetters of the entail, it is proper, when female succession is not excluded, to declare in the destination that the eldest heir-female shall, in all cases, succeed without division (a). These rules, and the observations on which they are founded, manifestly apply not only to the conditions, but to the provi- sions and restraining clauses of the deed. It will therefore be unnecessary again to refer to the mode of describing the per- sons whom it is intended to fetter. («) See note («), p. 343. 270. Prohibitions (1.) The prohibitory clauses of the entail form the substantial part of the deed, the purpose of which, in other respects, is chiefly to make these effectual. They are also styled limitations, restrictions, ov fetters ; and although these terms are employed in the plural number, they have but a single object — to preserve the succession in the family or line of descendants to whom the estate is destined. The pur- pose of the maker of a tailzie is simply to protect the destina- tion ; and with that view, he prohibits any alteration of the order of succession, — an alteration which may be produced in three several modes, — by gratuitous destination or settlement, by direct and onerous conveyance, or by indirect alienation by the diligence of the law. The prohibitions are therefore spe- cially directed against, first, Any alteration of the tailzie ; secondly, SelHng or disposing for onerous considerations ; and, thirdly. Contracting debt which shall affect the lands ; but sub- ject to these limitations, or such of them as may effectually be imposed, each person called to the succession is uncontrolled fiar. These modes of taking heritage out of a particular line of succession, viz. destination, alienation and adjudication, being separate and distinct in form, it arises from the pre- sumption in favour of the free transmissibility of feudal rights, that the omission of any one of them infers the absence of intention on the part of the entailer to exclude that particular 359 ^rnltit \ 270. I'ROIIIUITIONS. 5 Entail. Succession. ) ^ form of alteration. (2.) Of the structure of the prohibitive clause it may be observed, that a limitation, to be binding, must be expressed, and will not be inferred by implication from another part of the clause. Thus, a prohibition to sell does not import a prohibition against contracting debt, nor is either embraced by a prohibition to alter the order of succession («). (3.) The omission of part of the ordinary prohibitions does not directly invalidate the entail, which is binding in so far as these extend ; but, even in questions among the members of tailzie, a prohibition against altering the destination is no ground for inhibition or interdict, where alienation or the con- traction of debt is not expressly debarred (b). (4.) An act which is specially prohibited cannot, however, be performed under a power which is reserved or not excluded; e.(/. a col- lusive sale or an adjudication for a fictitious debt (although debts and deeds are not prohibited) will not enable the member in possession by collusive arrangement with the pretended purchaser or creditor, to effect an alteration of the line of succession (c). (5.) But the omission to prohibit the contract- ing of debt will enable the member in possession effectually to warrant a boiia fide deed, {e. g. a tack of an endurance beyond the ordinary period,) so as to exclude any interest on the part of succeeding heirs to reduce the transaction (d). (6.) A prohibitive clause in the, most perfect form is still a mere branch of the entail. Without the protection of the sta- tutory irritancies it has but a very limited effect, and it has even been doubted if it should receive the interpretation which prohibitory clauses have usually borne in deeds of settlement ; (above, § 248.) It seems indeed to be assumed, that the terms gratuitous alienation or alteration apply only to mortis causa deeds which remain in the grantor's possession, and not to absolute conveyances intended to have immediate effect, al- though granted without any onerous consideration [c). (a) Ersk. 3. 8. 29; Scott Nisbet, Nov. 1763, M. 15,51(;, affirmed; Stewart, 8th July 1789, M. 15,535. (J)) Ersk. as above; More's Notes on Stair, clxxvi. and cases cited; Catli- cart, 12th Feb. 1830, F. C, 8 S. 497 ; affirmed, 18th July 1831, 5 W. S. (r) Cathcart, as above. See Syme, 3d March 1821, F. C. {d) Olipliant, 1st July 1830, F. C, 8 S. 985. 3G0 Deeds of ) 270. PROHIBITIONS. 5 Entail. Succession. ) l (e) See notes to Lord Cuninghame's judgments in Campbell, 22d Dec. 1837, (Scottish Jurist,) and Buchanan, 23th Jan. 1838, 16 D. 358, and auth. cit. 271. Prohibition to alter (a). — (1.) In framing the limi- tation against altering or infringing the course of succession, although it is advisable to adhere closely to the usual style, it is not essential to employ any particular form of expression, so that the meaning be clear. (2.) Thus a prohibition against doing any thing m hurt and prejudice of these presents and of the foresaid tailzie and succession (Z>) ; or any deed whereby the hopes of succession of the succeeding members thereto may be in any measure evaded (c) ; or any other foct or deed in prejudice of the said tailzie, and of the persons above named, and their foresaids, introduced immediately after the prohibitions against selling and contracting debt ; or selling or contracting debt, or doing any other deed tohereby the lands may be any ways affected (d), has been sustained as effectual. These expres- sions obviously embrace gratuitous alterations only. (3.) On the other hand, when the acts prohibited relate merely to the defeat of the destination by the diligence of the law [e) ; or by a sale {f) ; or by both or either of these means {g) ; the heir in possession may alter the course of succession by voluntary conveyance ; and that although another clause of the entail should bear express reference to a prohibition against any such alteration as contained in the deed (A). (4.) The only ex- ception to this prohibition usual in practice, is expressed in the Style-book (?'), and is introduced to prevent questions arising out of the forfeiture of a particular heir ; but it is competent to restrict the present or any other limitation to a particular heir or heirs (It). (5.) It is not necessary that the members of tailzie should be restrained from adding to, as well as alter- ing the order of succession. Such a power is excluded at common law by the member assuming possession of the lands, under the conditions of the deed (I). The want of this pro- hibition seems to leave the members of the tailzie at full liberty to make a new entail, containing additional restric- tions (m) ; and it has been maintained that the creditors of a member of tailzie not affected by the prohibition, may adjudge the estate, or at least their debtor's faculty to alter the suc- cession (?/). 3GI Deeds of 1 27 I. PROHIBITION TO ALTER. j Entail. Succession, j l (a) And with and under the pboiiibitions under written viz. with and under this prohibition and restriction that it shall be nowise lawful to nor in the power of (the institute^ or any of the heirs or substitutes of tailzie above written to innovate alter or infringe this present tailzie or the order of succession hereby established or to do or grant any act or deed that may infer any alteration innovation or change of the same directly or indirectly. {h) Innes, 23d June 1807, M. App. Tailzie, No. 13; affirmed. (c) Maclaine, 23d June 1807, M. App. Tailzie, No. 14. Id) Ure, 17th July 1756, M. 4315; Rowe, 9th Feb. 1837, F. C, 15 D. 500. Sec also Campbell, 22d Dec. 1837, (Scottish Jurist,) relative to the same entail, and note to Lord Cuninghame's interlocutor. (e) Brown, 25th May 1808, M. App. Tailzie, No. 19. (/) Stewart, 8th July 1789, M. 15,535. (f/) Henderson, 21st Nov. 1815, F. C. ; Oliphant, 7th June 1816, F. C. (/() Tytler v. Grant, 9th March 1826, F. C, 4 S. 541, and case of Dickson, referred to. 0) Jurid. Styles, 1. 228. (A) It is hereby declared that the foresaid conditions prohibitions clauses irritant and resolutive provisions and declarations (or such of them us it mat/ please the entailer to express) are for certain weighty causes and considerations to be binding upon and affect the said B. alone but are not to affect any of the other heirs of tailzie above mentioned; (see E. of Fife, as below.) — The same ob- ject will be attained by specifying the members of tailzie whom it is intended to restrain, and omitting the other heirs and substitutes. (l) Menzies, 25th June 1785, M. 15,436 ; Meldrum, 29th June 1827, 5 S. 857 ; E. of Fife, 7th March 1828, F. C, 6 S. 698; Bell's Frinc. 1761. (ni) More's Notes on Stair, clxxx. («) See Brown, 11th March 1837, 15 D. 837. 272. Prohibition to alienate — 1. Terms — This limi- tation is usually expressed as in the notes (a). As respects the persons restrained, the rules above noticed apply; (§267- 9.) (1.) This prohibition, although directed against acts which, in ultimate effect, produce an alteration of the order of succession, is not inferred from words which plainly im- port only a change of the destination. Thus, a prohibition to alter, innovate or infringe the foresaid tailzie, or the order of succession therein appointed, or the nature or quality thereof any manner of icay [b) ; or, to do any facts or deeds in pre- judice of the other heirs, their right of succession (c), does not restrain the heir in possession from selling the lands. (2.) But as it is enough to employ terms which mark the purpose of the entailer, a prohibition to squander or put aicay the estate, or any part thereof, vol faciendo vcl delinqucndo, any icays contrary to this present settlement, has been held etfec- 362 Deeds of 7 272. PROHIBITION TO ALIENATE. | Entail, buccession. ) ( tual (d). Thus also the terms, annailzie and dispone, or simply dispone, include disposal by sale (e). 2. Absolute conveyances Conveyances for onerous considerations, for the purpose of absolute transmission, are obviously included under the prohibition. 3. Feii-riyhts. — It has been assumed in numerous in- stances, that grants in the shape of feu-rights, even for an adequate feu-duty, are alienations in the sense of the sta- tute (/). In practice, the understanding is uniformly acted on. 4. Provisions to loidoics (1.) These, in so far as they exceed the widow's legal right of terce, fall within the scope of the prohibition {(j). (2.) The terce itself may be excluded by express words, for, although a legal and not a conventional provision, as it is measured by the husband's sasine, the terce cannot be due where that sasine excludes it. The right of terce is indeed weaker than an heritable security, to Vv Inch it is postponed, and that burden does not affect a strictly en- tailed estate. Were the terce, therefore, incapable of being excluded, the anomalous result would follow, that the widow of an entailed proprietor would be better secured in her legal rights than the widow of an unlimited fiar. Terce and cour- tesy are analogous rights : they are merely a legal distribu- tion of the estate, and may be excluded by the style of an entail (Ji). 5. Leases Under the prohibition io sell, alienate, dis- pone, burden, dilapidate, or put away, are included leases of an unusual endurance (z). The terras dispone, alienate and put away, as used in deeds of entail, have, after much discus- sion, been held synonymous. The term alienate was at one period considered to have a more comprehensive application than dispone, and in common acceptation the difference is well marked. The Court, therefore, gave effect to the former as embracing leases of unusual duration, but refused it to the latter {li) ; but in the House of Lords, alienate and dispone were regarded as equivalent terms (/). The term, away put, was taken in a broader sense than even alienate before the reversal in Elliot's and other cases (m). 6. Term of endurance (I.) Leases of an unusual endurance have uniformly been regarded as alienations ; but 3f53 Deeds of ) 272. PROHIBITION TO ALIENATE. | Entail. Succession. ) ( the Court have not determined the precise question, what is the proper term of an agricultural lease (n). It has been observed, that the term of a lease of this nature may vary according to the custom of different districts, as influenced by circumstances (o). (2.) In an early case it was maintained, that a lease for even nineteen years was an alienation, and that a member of tailzie could not set tacks to endure beyond his own lifetime. But in one branch of the Quecnsberry cases, a lease granted for tw^enty-nine, twenty-seven, twenty- five, twenty-one or nineteen years, " whichever of the said " several term of years, (short of the period of thirty-one " years,) the Court of Session or House of Lords shall find " to be the longest period " for which the heir in possession had power to grant a lease, was sustained for the term of twenty- one years (p). That period may therefore, perhaps, be re- garded as the maxirmim of an agricultural lease, contradis- tinguished from an alienation. (3.) Leases in direct contra- vention of the tailzie are not valid even for the ordinary period of an agricultural lease {q) ; but w here the term of endurance is within the power of the member in possession, for example, nineteen years, it does not invalidate the lease that there is an obligation to renew annually during his lifetime (r). 7. Grassum — (1.) Leases even of ordinary duration, when a fine or grassum (which is regarded as antici})ated rent) has been accepted for a reduction of the rent, and generally all leases granted hifraudcm of the entail, fall under the pro- hibition to alienate. (2.) In construing a clause prohibiting alienation, but permiting leases icltlioiit dbninution of the rental, at least at the just avail for the time, it is held that these last words mean a fair value at the time of leasing ; that rental and rent occurring in such a lease are equivalent terms ; that an heir in possession taking a grassvnn ettects a diminution of the rental or rent, and docs not take the just avail for the time ; that a lease granted at the old rent, on a renunciation of a former lease, which rent had been fixed with reference to a grassum, is a lease with diminution of the rental; and that a lease is exceptionable in which the rent payable during the grantor's lifetime, or for a certain period from its date, is greater than the rent stipulated for the remainder of the 364 Succession ( ^'^^* PI^OHIBITION TO ALIENATE. | Entail. lease (s). (3.) A prohibition to alienate is controlled by a clause permissive of leasing, to the extent of the permission ; and in the absence of such a prohibition leases may be granted for grassums, and without limit in respect of endurance (f). 8. Leases of coal, mansion-house, Sj-c (1.) The pro- per term of endurance of leases of coal, and other mines and minerals, and of fishings, has not been determined. (2.) A lease of the mansion-house, gardens and pleasure ground around the house, (which are not entered in the rent roll of an estate, or in use to be let,) cannot be granted to the pre- judice of future heirs (u). 9. Cutting wood. — When it is intended that the member in possession shall have power to cut wood only to a limited extent, the amount of the privilege ought to be carefully de- fined. The prohibition to alienate or dilapidate does not in- clude the cutting down of full-grown wood, and a future heir cannot in the general case interfere with the operations of the member in possession, although he should offer the full value of the timber which it is proposed to cut down (p). But the Court will exercise an equitable control when the evident pur- pose or tendency of these operations is to dilapidate the estate by cutting young and unripe wood, or timber necessary for the comfort and amenity of the mansion-house (^f?). 10. Thirlage This limitation strikes against thirlage of any part of the lands to a mill not belonging to the entail- ed estate (x). 11. Propelling the succession. — It is not an alienation to convey the estate to the next heir of tailzie, being the heir alioqui successurus, (the heir-apparent, not the heir-presump- tive, ) which is called propelling the succession ; nor is the course of succession thereby changed. It cannot, therefore, be excepted to as an act of contravention (xj). (a) And with and under this prohiliition and restriction also that it shall not be lawful to nor in the power of my said disponee or any of the heirs of tailzie foresaid to sell alienate dispone burden dilapidate or put away the lands and others above written or any part thereof either irredeemably or under rever- sion or to contract debts grant bonds or any other writs deeds or securities or to do any act civil or criminal that shall be the ground of any adjudication eviction f)r forfeiture of the same or any part thereof or anywise to affect or burden the same nor shall the said lands and estate or any part thereof be affectable by or sub- 305 Deeds of V 272. PROHIBITION TO ALIENATE. J Entail. Succession. 3 ( ject to any tcrces or courtesies to the wives or husbands of the persons above written. (I)) Campbell, 1 7th June 1746, M. 15,505. See also Sinclair, Sth Nov. 174!), M. 13,382. (c) Xisbet, Nov. 1763, M. 15,516; affirmed, 20th March 1765. (d) Cuming, 29th July 1761, M. 15,513. (e) Hepburn's Creditors, SthFeb. 1758, M. 15,507; Elliott, 19th May 1803, M. 15,542. (/) See Cathcart, as in («) ; Kcr v. Innes, 23d Jan. 1807, M. App. Tailzie, No. 18; affirmed, Dow, 2. 149; M. of Abercorn, 26th Jan. 1816, F. C. (ff) Ersk. 3. 8. 30; Bell's Princ. 1731. (A) Bell's Princ. as above ; Gibson, 24th Nov. 1795, M. 13,869. The clause is in these terms : " "Which liferent locality so to be provided to wives is hereby *' declared to be In full satisfaction to them of all they can ask or claim of the " law in name of terce declaring that although it shall happen any of the heirs " of tailzie above specified to fail in providing their wives conform to the above- " written reservations to that effect yet the said wives shall have no manner of " right to the terce or any other legal provision upon or out of the said lands •' and estate notwithstanding any law or practice to the contrary." — Macgill, 13th June 1798, M. 15,451. (i) See Craig, 3. 3. 22; Stair, 2. 11. 13; Bell's Princ. 1752; Hunter's Landlord and Tenant, 74, 79. (k) Elliott, 10th March 1814, F. C. ; Hamilton, 3d March 1815, F. C. See Stirling, 20th Feb. 1821, F. C. (?) Queonsberry Leases, 30th March 1819, 1 Bligb, 339 ; Elliott, as reversed, 14th March 1821, 1 S. (Ap.) 16, 89, (m) Innes i: Mordaunt, 9th March 1819, F. C. ; affirmed, 3th July 1S22, 1 Shaw, (Ap.) 169. (n) Hunter's Landlord and Tenant, 79, et seq. and auth. cit. ; Bell's Princ. 1732. See Malcolm, 17th Nov. 1807, M. App. Tailzie, No. 17 ; affirmed, Dow, 2; Turner, 17th Nov. 1807, it. No. 16 ; atlirmed, 1 Dow, 423; Henderson, 18th May 1814, 2 Dow, 283; Queensberry Leases, 30th March 1819, Bligh, 1. 339. (o) See Mere's Notes on Stair, dxxxv. (p) Wemyss, 12th June 1822, F. C, 1 S. 483. See Bell's Princ. 1732. (7) Gordon, 22dNov. 1822, 2 S. 32 ; Malcolm, 19th June 1823, 2 S. 410. (r) Queensberry Leases, as above. («) Last reference. (0 Bell's Princ. 1752; Hunter, as in («) ; E. Elgin, 13tii June 1821, 1 S. (Ap.) 44. (n) Cathcart, 31st Jan. 1735, M. 15,399, 13,403, B. S. 5. 818; affirmed on ap. ; Leslie, 2d March 1779, M. 15,330, 2 Hailes, 832, affirmed. See Turner, 6th Dec. 1811, F. C. (f) Hamilton, 16th Feb. 1757, M. 15,408. («.-) Mackenzie, 6th March 1824, 2 S. 773, See Cathcart, 31st Jan. 1753, M, 13,399, 13,403, B. S. 3. 818; Bontine, 17th Nov, 1827, 6 S. 74, (a) Rank, of Balgair, 7th Dec. 1763, B. S. 3. 622. (;/) Craigie, 4tli Dec. 1817, F. C. See Gordon, 14th Nov. 1749, M, 13,384; Suttie, 3th July 1738, B. S. 3, 866; Maeleod, 17th Nov. 1827, F. C, 6 S. 77, 36G Deeds of } 273. PROHIBITION TO BURDEN. j Entail. Succession. ) L 273. Prohibition to contract debt {a) — (l.)This pro- liibition is plainly intended for the benefit of the substitutes of tailzie, and of them only. For these substitutes and no other persons have the statutory clauses any force ; but their title to complain of acts of contravention does not qualify the feudal ri"ht. It must be exercised, and may therefore, like any other right of action, be lost by the negative prescription. Thus, there seems no reason to doubt that an heritable secu- rity granted over entailed subjects, if not itself extinguished by prescription, will become available against the substitutes of tailzie, if they neglect to resolve the right of the contravener within the forty years ; and it has been seen, that the posses- sion of an heir on a fee-simple title for that period works off the whole fetters of the tailzie ; (above, § 125). But if the sub- stitutes of entail have the sole title to resist the contraction of debts as against the estate, it follows that the acts and deeds and debts of the last substitute are effectual against his heir whomsoever, who is not an heir of tailzie ; (above, § 266. 7.) On the same principle, when the entail comes to an end by the operation of the law, e. cj. where, by the forfeiture of the rin-ht of the member in possession, the estate passes to the Crown freed and discharged of all limitations, substitu- tions and remainders, the Crown has been held to be in the situation of the heir whomsoever of the last substitute, and not entitled to found upon clauses intended for the benefit of substitutes of entail only, so as to take the estate free of the debts of the forfeiting person iJj). (2.) The prohibition to burden, or to contract debt, so as to affect the lands, is sub- ject to the rules of construction which regulate the other limitations. The restraint must be imposed in a substantive shape, and is not to be deduced by implication. Thus, a prohibition to alter^ innovate or infrmfje the tailzie, or the order of succession therein appointed, or the nature or qualifij thereof, any manner of way, does not disable the member in possession from burdening the estate. But the terms, to contract debt on the lands, or to burden the same, in whole or in part, ivith debts or sums of money, are sufficiently compre- hensive ; for although both phrases strictly imply voluntary contractions only, and do not embrace judicial burdens by 307 Deeds of 7 273. PROHIBITION TO BURDEN. J Entail. Succession. } I adjudication, yet the meaning of the entailer is clear, to pre- vent the lands from being- burdened with debt in any form (c). It is advisable, however, to employ the ordinary words of style. (3.) Although this limitation can extend no farther than to prevent the imposing real burdens on the lands, or in other words, to preserve the estate from being affected with voluntary or judicial incumbrances to the prejudice of the succeeding heirs, it has been questioned, but of course with- out success, if the member in possession does not incur an irritancy by contracting personal debts, a proof (says Lord Kilkerran) that the plainest matters may be made the subject of discussion (d). And as the purpose of the entailer is to preserve the estate to the series of heirs expressed in the destination, and not to exclude each possessor in his turn from the full liferent use of it, the lands may be charged with debt by way of annuity, if restricted to the lifetime of the heir in possession, without operating as a contravention of the tailzie. Voluntary securities and liferent trusts over entailed estates, so limited, are accordingly common in practice; (see § 215.) (4.) The prohibition against burdening the lands necessarily excludes the power to grant provisions to children {e), or melio- rations to tenants (/), so as to affect the estate or the succeed- ing heirs. (a) See note (a) p. 364. This prohibition is usually incorporated with the prohibition against contracting debt. (t) Campbell, 17th June 1746, M. 13,505. (c) Mackenzie, 23d May 1823, F. C, 2 S. 331 ; Uaggart, 19th Dec. 1820, F. C. ; Nisbet, 10th June 1823, F. C, 2 S. 381. (d) Denhani, 15tli Dec, 1737, B. S. 5. 200. (e) Borthwick, Feb. 1730, M. 15,556. (/) Hunter's Landlord and Tenant, 586, et seq. 274. Prohibition to permit adjudications (a) (1.) The last of the prohibitions in the entail is against permitting special adjudications to pass against the lands, which can only be done with the concurrence of the member in ])osses- sion. It is competent, however, to adjudge the life-interest of the member in possession without a breach of the prohibi- tion. This may be done in the form of an adjudication of the life-interest merely, or of the lands themselves, under the 3G8 Deeds of 1 21 A. TO PREVENT ADJUDICATIONS. 5 Entail. Succession. J I express qualification that the security shall, ipso facto ^ be ex- tinguished and the lands redeemed by the death of the debtor, and that its effect, as against the lands, shall then absolutely expire. The latter form is obviously the preferable, as war- ranting infeftraent in, and consequently possession of the lands themselves during the debtor's lifetime ; and, in competition, it will exclude a mere infeftment in the life-interest (Z>). (2.) It may, perhaps, be assumed, that every form of diligence and process, even judicial sale, is competent, which goes merely to affect and attach the life-interest of the member in possession, and that, if duly qualified, a decree of adjudi- cation or of sale will not operate as a contravention of the entail (c). (a) And also with and under the prohibition and condition that it shall not be lawful to the said (institute) or the heirs of tailzie foresaid or any of them to consent suffer or permit that any special adjudication be obtained or passed of any part of the foresaid lands and others before disponed for any sum of money or debts whatsoever. {}>') See Grahame, 14th Nov. 1828, F. C, 7 S. 13; and 19th July 1833, S. (Sup.) 101. (c) See Ferrier, 11th July 1835, 13 S. 1121." 275. Reservations from the prohibitions (a) — The fetters of the entail being duly imposed, certain powers, more or less ample, according to the wish of the entailer, are con- ferred on the members of tailzie for special purposes. 1 . Poioer to provide ividows — ( 1 .) The members of tail- zie are usually permitted to grant liferent provisions to husbands and wives by way of locality, not exceeding in whole a certain specified proportion of the yearly rental of the estate, the pro- vision so long as a former locality subsists to suffer a deduc- tion of the amount of such locality. But the faculty to grant such provision is not a surrofjatnm for the widow's terce, where it is excluded : to be binding on the succeeding heirs of tailzie, it must be exercised {b). When it is so expressed as to autho- rise reasonable provisions, the Court may exercise an equitable control (c). (2.) The object of assigning locality lands for a widower or widow's provision is well explained in the words of the style () 10 Geo. III. c. 51, § 32-3; 6 and 7 Will. IV. c. 42; 1 and 2 Vict, c. 70. (7) Jurid. Styles, 1. 231. (r) 10 Geo. III. c. 51. 276. Irritant AND resolutive clauses (a) — 1. Com- bined effect These clauses are essential to the strict entail. The irritant declaration annuls the acts and deeds done in contravention of" the conditions and prohibitions of the entail ; and the resolutive forfeits or resolves the right of the contra- vener. (1.) It was at one period maintained that these clauses were not indispensable for producing- a substantive effect, and that a simple prohibition to dispone or contract debt, whereby the estate might be evicted, necessarily implied an irritancy of all deeds done to the contrary (b). But although 373 Deeds of > 27(). iiiiilTAXT AND HE.SOLLTIVK CLAUSES. I F.iiUil. Succession. ) ( the statute of entails does not in words declare that irritant and resolutive clauses are essential for protecting the con- ditions and fetters of the entail, the inference from its terms has uniformly been considered by the Court to be inevitable, when reg^arded in connection with the views taken by the Judges in the case of Stormont, which preceded the enactment. (2.) Still it was not until after much discussion that the mo- dern notion of the combined operation of these clauses was generally received. It appears, indeed, to have been held by the House of Lords in an early case, that a prohibition to contract debt, with a declaration irritant of the debt contract- ed, was etiectual to protect the lands without any declaration resolutive of the right of the contravener (c). But the deci- sions of the Court below have since been uniform in support of the rule, that both an irritant and a resolutive clause are essential to secure the fetters of the entail. Thus, the omis- sion of the former is fatal, although the latter be duly express- ed ; and on the other hand, the insertion of an irritant does not supply the place of a resolutive clause {d). (3.) The necessary consequence of a defect in either the irritant or resolutive declaration is to leave the members of tailzie unfet- tered by the prohibitions against selling or contracting debt : they may dispose of the estate for onerous causes, without being accountable for the price, or burden it at pleasure, and it may be adjudged by the creditors of an heir who has been in possession {e). In regard to the efiect of a prohibition ao-ainst altering the order of succession, or alienating the estate, unprotected by the statutory irritancies, see § 248, 270- 2. Structure of the clauses — (1.) By the usual form of the irritant and resolutive clauses, they are intimately com- bined, and the acts and deeds of the members of tailzie are referred to in general terms. They consist, ^r^^ of a general declaration resolutive of the right of the contravener ; secondly, of a declaration irritant of his debts and deeds, and of all ad- judications, or other legal execution or diligence following upon them ; and, lastli/, of a declaration resolutive of the right of the members of tailzie on whose debts and deeds such adjudi- cations shall have proceeded. (2.) The clauses, as given in the Style-book, have been subjected to verbal criticism {f) ; and 374 Deeds of I 276. lURITANT AND RESOLUTIVE CLAUSES. j Entail. Succession. ) ^ although the objections were considered as by no means of a serious nature, I have ventured, in transcribing the form in the notes, to suggest a slight alteration, which is shewn by italics. That form is universally employed by good convey- ancers ; and although the last branch, consisting of the special declaration against adjudications, may to some appear super- fluous, as, in apparent effect, a repetition of what is contained in the general resolutive declaration with which the combined clause sets out, there can be no doubt that the form has been carefully prepared with a view to embrace every possible in- stance of contravention, without expressing more than is strictly necessary. 3. Terms of the clauses (1.) Although advisable, it is by no means essential, to follow the ordinary style. The clauses may be general, or special so as to refer to every prohibited act or deed ; or they may, without injury to the entail, be repeated after each prohibited act or deed. No strict rule is laid down by the statute as to the place and form of their insertion in the deed, and none has been fol- lowed in the determination of disputed questions on entails. (2.) But it is essential that the general and special modes of reference shall not be mixed up together, without at least carrying out the special reference to the fullest extent. Thus, where the prohibitory and irritant clauses were unexception- able, but, in the resolutive clause, (which, although com- mencing with a general reference to the fetters, was controlled by the enumeration of certain acts as specially forbidden,) the power to alienate was omitted, it was held that the heir in possession was not disabled from selling the estate (ff.) The same was the result where the general reference, thus combined with a defective enumeration of particular acts, was declared to be icithout prejudice of the specialties (h), and even where the general reference seemed unrestricted in its meaning, but only particularised and enforced with respect to individual acts and deeds (/). (3.) When, again, the clauses are framed upon the principle of a special reference, the omis- sion of a particular prohibition in the irritant or resolutive declaration, without any question leaves the members of tailzie to that extent unfettered (A). Such cases furnish an emphatic 375 Deeds o ) 27G. lUItlTANT AND UliSOLUTIVE CLAUSES. | Eiituil. Succession, y ( lesson to the conveyancer to trust solely to the ap])roved clauses of style. As respects the application of the clauses to the persons restrained, see § 267-9. 4. Omissions or defects in reference — In another class of cases, where the precise application of the irritant or for- feiting terms to the acts prohibited, is prevented by the omis- sion of words, or even the use of the singular for the plural number, there is much risk of the fetters being found inopera- tive. (1.) Thus, a mere clerical omission in the irritant clause was held fatal. The clause declared, that not only the said lands and estate shall not be burdened icith or liable to the debts and deeds, crimes and acts contracted, granted, done or committed contrary to these conditions and provisions, or restric- tions and limitations, or to the true intent and meaniny of these presents, — shall be of no force, strength, or effect, ^'c. Here the nominative to the verb shall be was omitted, and thus the terras by which the debts, deeds, &c. were declared void, were not connected with the prior enumeration, by words oc- curring in the deed itself; and the House of Lords, following the principle of rigid construction, held that there was there- fore no irritant clause eft'ectual to annul the debts and deeds of the heir in possession (/). (2.) Thus, also, in a recent case, w^here a clause of a complex structure, partly conditional, prohibitory and irritant, contained two distinct and separate declarations or provisions — one in the form of a condition to possess under the entail, the other in that of a prohibition against selling or contracting debt, which, in the irritant branch of the clause, were referred to by the terms provision above set forth ; the Court, disregarding the argument from intention, held, that as the word provision did not embrace both the condition and the prohibition, and could not with certainty be applied to either, the heir in possession was not disabled from selling or contracting debt {m). (3.) The irri- tant and resolutive clauses must be directed against the insti- tute and heirs according to the rules above explained ; but in declaring the nullity of forbidden acts and deeds, it is not necessary to add, in express words, that they shall be ineflec- tual as against the persons called to the succession. It is suf- ficient that they are declared to be null and void {n). 376 Deeds of > 276. lUlllTANT AND RESOLUTIVE CLAUSES. j Entail. Succession. J < 5. Contravener forfnts for himself only — ( 1 .) In the form of these clauses given in the notes, the forfeiting terms are limited in their application to the contravener only by the words, shall for him or herself only forfeit amit and lose all right, &c. Such express restriction does not, however, appear to be necessary. The penal consequences of an act of contravention seem to be confined to the contravener, unless it is otherwise expressed {o). The possible effect of extend- ing them to the descendants of the contravener ought to be in the view of the conveyancer ; for it is manifest that an heir in the obnoxious line could have no interest to complain of acts of contravention. These might, in numerous instances, thus pass unnoticed, and obtain effect by prescription. (2.) The penal consequences of an act of contravention are purged by the extinction or expiry of the right granted contrary to the prohibitions {p) ; and it has uniformly been assumed that they cannot be enforced after the death of the contravener, even where the forfeiture is directed against the heirs of tailzie and their descendants [q). 6. Deeds jirohihited must he reduced — (1.) Deeds exe- cuted in contravention of the tailzie are not in themselves invalid : they flow from a feudal proprietor, and being excep- tionable by force alone of the statute, they are effectual until reduced (r). (2.) The statute gives a title to substitutes in entails which contain irritant and resolutive clauses, both to challenge acts and deeds done in contravention of the tailzie, and to resolve the right of the contravener ; but it is by no means essential to the exercise of such right of challenge, that an action of declarator of irritancy shall likewise be brought against the contravener. The notion of the common law, that whilst the right of the heir in possession subsisted, his deeds must receive effect, seems no longer to be received. It is enough under the statute, that power is given to deprive him of the estate ; but such power is vested in the substitutes of en- tail alone, who may or may not choose to enforce it. Their title to reduce the deeds themselves is a separate right, and operates against the users of those deeds, to whom it \sjus tertii to maintain that the right of the contravener still subsists. The reduction of a forbidden deed may be pursued even after the 377 Deeds of ) 27(J. lUniTANT AND UESOLUTIVE CLAUSES. i EiiUil. Succession, y I death of the contravcner (.?). (3.) It has heen successfully maintalued, that where the entail contains a declaration that the contravener shall forfeit for himself and his descendants, an heir descended from the body of a contravener is barred from objecting to an act of contravention (t) ; and although, in another case, a difterent view prevailed, the action was pursued with the concurrence of a substitute not in the line of descendants {n). These instances serve to shew the pro- priety of saving the descendants of the contravener from the consequences of his forfeiture, and thus giving them an in- terest to complain of acts of contravention. 7. Punjinff of irritancies. — It is worthy of the consi- deration of the conveyancer in preparing a deed of entail, whe- ther the latitude to be extended to the members of tailzie, in purging irritancies, ought not to be distinctly defined. Under these clauses, as they are usually expressed, the rule seems to be, that an act of contravention may be purged at any period during the lifetime of the contravener, if no damage has been done to the estate ; and, accordingly, an heir of tailzie disre- firardinsT the condition to bear the name and arms of the entailer, has been allowed to resume them even after process of decla- rator iy) . But after the death of an heir contravening the prohi- bition against alienation, by granting leases of an unusual en- durance, purgation has been refused to the tenants (ic). In these circumstances, it may be advisable to declare cither that purgation is wholly excluded, or shall be inadmissible, unless made within a fixed period after the act of contravention. (a) And with and under these irritancies following Uiat if the said (the in- stitute) or any of the heirs of tailzie above written shall contravene any of the conditions or prohibitions herein contained either by failing or neglecting to per- form or fulfil the said conditions and every one of them or by acting contrary to the said prohibitions or any of them That in any of these cases the person contravening by failing and omitting to obey the said conditions or any of them or acting contrary to the said prohibitions or any of them shall for him or her- self only forfeit amit and lose all right title and interest to the foresaid lands and estate above disponed in the same manner as if the contravener were'nalu- rally dead And the right thereof shall devolve upon the next heir of tailzie though descended of the contravener's body to whom it shall be lawful whether major or minor at the time to pursue dodai-ators of irritancy and to niake up titles to the said lands and estate by serving heir to the person last infeft therein befoi'e the contravener or to the contravener him or herself without being any- wise liable for such contravener's delits and deeds or to make up titles by de- 378 Doodsof 7 276. IRRITANT AND RESOLUTIVE CLAUSES. { Entail. Succession. ^ ^ clarator or adjudication or any other way by law competent And it is hereby expressly pkovided and deci.ared that all the debts and deeds of the said (institute) or of any of the heirs of tailzie above written contracted made or "•ranted as well before as after their succession to the said lauds and estate in contravention of this present entail and provisions conditions and prohibitions herein contained and all adjudications or other legal execution and diligence that shall happen to be obtained or used upon (for the same, read, mti/ of the said debts or deeds) (excepting as is above excepted) shall not only be void and null with all that shall or may follow thereupon in so far as they might any wise atfect the said lands and estates But also the said (institute) and heirs of tail- zie foresaid respectively upon whose debts and deeds such adjudications have proceeded shall ipso facto lose and forfeit their right and title to the said lands and estate and the same shall devolve to the next heir of entail in like manner as if the contravener were naturally dead and that freed and disburdened of the said debts and deeds and adjudications or other diligence deduced thereon. (6) Gardner, 27th Jan. 1744, M. 15,501-3. (c) Craig's Crs. 13th July 1712, M. 15,494; Robertson's Ap. 110. (d) Bell's Princ. 1732; Reidheugh, 11th March 1707, M. 15,489; Hep- burn, 8th Feb. 1758, M. 15,507; affirmed, 7th Dec. 1758; Mitchelson, 15th June 1831, 9 S. 741. See Craig's Crs. as above. (e) Stewart, (Ascogcase,) 23d Feb. 1827, F. C, 5 S. 418, as reversed, W. S. 4. 196 ; Bruce, 21st June 1827, F. C, 5 S. 822, as reversed, W. S. 4. 240 ; Elibank, 2d July 1833, F. C, 11 S. 858; affirmed, 19th March 1835, 1 S. and M'L. 1 ; Mitchelson, as in (rf). (/) See Elibank, 21st Nov. 1833, F. C, 12 S. 74. (g) Bruce, 15th Jan. 1799, M. 15,539, (Tillycoultry case.) (A) Dick, 14th Jan. 1812, F. C. (i) Home, 17th Jan. 1837, F. C, 15 D. 372, as reversed, March 1838. (k) Barclay, 18th May 1821, 1 S. (Ap.) 24. (/) Sharpe, 3d July 1832, F. C, 10 S. 747; as reversed, 18th April 1835. 1 S. and M'L. 594. (m) Speid, 21st Feb. 1837, F. C, 15 D. 618. In) Munro, 15th Feb. 1826, F. C, 4 S. 467 ; affirmed, W. S. 3. 344. (o) See Gordon, 14th Nov. 1749, M. 15,384; Bonline, 2d March 1837, F. C, 15 D. 711. (p) Mackay, 23d Nov. 1798, M. 11,171. Iq) See Mackay, as in (p) ; Turner, I7th Nov. 1807, M. App. Tailzie, No. 16; affirmed, 1 Dow, 423; Mordaunt v. Innes, 9th March 1819, F. C, and opinion of Lord Robertson. (;•) Agnew, 23d June 1813, E. C. See Sandford on Entails, 276, et scry. (a) Mordaunt v. Innes, as in (7), and 5th July 1822, S. (Ap.) 1. 169, and cases cited. See Karnes Eluc. 373. (<) Gordon, as in (o) ; Gilmour, 6th March 1801, M. App. Tailzie, No. 9. (»/) Turner, as in (7.) (y) Hamilton Gordon, 23d July 1748, M. 2336 and 7281 ; Ross, 18th Nov. 1766, M. 7289, B. S. 5. 932. See Abernethie, 20th June 1837, F. C, 15 D. 1167. (w) Queensbcrry Exec. 6th July 1820, F. C. ; affirmed, 2d July 1821, S. (Ap.) 1. 59; E. of "SVcmyss, 2d Feb. 1821, F. C. ; Hislop, 2d July 1821, S. (Ap.) 1. 64. 370 Deeds of V 277. I'llOVISlONS. j Enlail. Succession. ) ( 277. Provisions (a) — The destination, conditions, limita- tions, and irritant and resolutive clauses, when properly ex- pressed, are effectual to constitute a valid tailzie, to endure if heirs-portioners be excluded, and there are no causes of decay external to the deed, so long as the scries of heirs continues to exist. It is necessary, however, to provide for the contin- gencies which attach to the right ; and the provisions which are introduced for that purpose, being proper conditions of the right of succession, each member in possession is bound to implement them under the penalty of forfeiture. («) For the usual provisions insei'ted in entails, see Jurid. Styles, I. 233, et seq. 278. Provision as to the mode of succession on con- travention («) (1.) The next heir in the order of succes- sion, or if he shall unnecessarily delay to exact the forfeiture, any substitute however remote may complain of an act of con- travention {b). This right flows necessarily from the status which the substitutes hold as creditors of the member in pos- session, to the effect of enforcing implement of the obligations of the entail, and the manifest interest which each has to throw the contravener out of the line of succession. (2.) But as irritancies, more especially those introduced by statute, arc to be strictly interpreted, the contravener forfeits only for him- self, and not also for the heirs of his body, unless it is so pro- vided (c). Nevertheless it is usually in express terms de- clared, that the heir of the contravener's body shall succeed upon a declarator of contravention, and provided that he shall take up the succession on his coming into existence, even al- though the person \\ ho was the nearest heir at the time of the contravention shall already have assumed possession. («) Jurid. Styles, I. 233. (/>) Simson, 6tli Jan. 1G97, M. 15,353; Irvine, Jan. 1723, M. 15,369; Duu- das, 29th Nov. 1774, M. 15,430. ((■) Gordon, I4th Nov. 1749, M. 15,384. 279. Provision as to debts and adjudications (^7) (1.) When the entailer dies leaving debts, the institute or dis- ponee takes the estate, under burden of the debts. An heir 380 Deeds of 7 2/9. PROVISION AS TO DEHTS, &C. j Entail. Succession. ) t of entail making up a title as such, although he does not take the benefit of an inventory, is said not to incur a universal re- presentation of the entailer {b). (2.) It has been customary for the member in possession who wishes to disburden the estate of those debts, to apply for the authority of Parlia- ment to sell a portion of the lands, but he may avail himself of the provisions of a recent statute (c) ; yet it appears to have, at an early period, been held that a prohibition to sell, anailzie, icadset or dispone, did not disable the mem- ber in possession from selling for payment of the debts of the entailer {d). (3.) Although a member of the tailzie, on coming into possession, becomes liable in payment of those debts, he is not bound, without a provision to that eflfect, to discharge them out of his separate funds, and to transmit the estate unincumbered to his successors. He may constitute them, if personal, as real burdens on the estate, by adjudica- tion deduced in name of a trustee (e), or keep up the debts . against the estate and the succeeding heirs by means of as- signations (taking care that these shall not contain discharges) from the creditors (/). (4.) When thus vested in the per- son of a member of tailzie, or a trustee for his behoof, the debts do not bear interest, or rather, the obligation being to pay out of one pocket what is to be put into the other, is suspended during his lifetime ; but it revives on the death of such member, if his heir of line be not likewise the next heir of tailzie (fj). He may assign the debts so as to affect the rents of the estate during his lifetime (A). (5.) When the debts are vested in a stranger, the member in possession must keep down interest or annuities, and he has no claim of rehef against future heirs ; but in so far as not discharged by him, such interest and annuities remain a burden on the lands {i). (6.) It is thus obviously for the safety of the tailzie to take the institute and substitutes bound by an express provision to discharge the entailer's debts, and purge adjudications led against the estate, a provision which will secure the extinc- tion of the debts, if actually paid by the member in posses- sion, or on his neglect, the devolution of the estate to the next heir willing to implement it. This he may do by means of a sale under the statute of Will. IV., or in virtue of the 381 Deeds of Succession, I 279. PROVISION AS TO DEBTS, &C. j Entail entail, if it contain a faculty to charge the estate with the entailer's debts and sell part of it for their payment (h). But where the entailer is owing considerable debts, the safest mode of providing for their payment, is by a trust constituted with reference to the entail. (rt) Jurid. Styles, 1. 233. (&) Bell's Princ. 1743 ; Sutherland, 26th Feb. 1801, M. App. Tailzie, No, 8. See Waitland, 5th Dec. 1755, 5 B. S. 837 ; Murray, July 1748, 5 B. S. 7G4. (c) See Mitchell, 4th Feb. 1809, F. C. ; 6 and 7 Gul. IV. c. 42. Id) E. of Lauderdale, Feb. 1730, M. 15,556. Ce) Murray, as in (b). (/) See Ker, 15th Feb. 1758, M. 15,551 ; Lawrie, 7th Doc. 1830, 9 S. 147. (;/) Stair, 1. 18, 9 ; Ersk. 3. 14. 27. (h) Welsh, 11th Feb. 1837, F. C, 15 D. 537. (i) Campbell, 29th Nov. 1815, F. C. ; Erskine, 7th July 1829, F, C, 7 S. 844; Sands, 7th July 1835, F. C, 13 S. 1040; D. of Richmond, 2d Dec. 1837, 16 D. 172. (A) See Stralhallan, 29th May 1828, 6 S. 881. 280. Provision for the exclusion of a contra- VENER (rt). — It is usual to provide by an express clause, that a person against wdiom an act of contravention has been de- clared, shall be excluded from the management of the estate even as administrator-in-law for his own child, lest, under colour of such management, he should continue his posses- sion. (a) Jurid. Styles, 1. 235. 281. Provision for completing titles («) — (1.) In order to preserve the estate subject to the fetters of the tailzie, it is essential not only that the deed shall have been once feudalised and recorded, but that each and every heir shall complete a title under the entail (b). And that this may be done, a provision is introduced which confers authority on the future heirs to enforce the obligation against the mem- ber in possession (c). The tailzie runs a double risk on the succession of an heir. He may complete a fee-simple title to the lands, and if none has been completed under the entail, his possession will be ascribed to such fee- simple title, and the fetters of the entail may be worked off by prescription ; (§ 125) ; or in renewing the investiture he may omit all or 382 Deeds of 7 281. PROVISION AS TO TITLES. j Entail. Succession. ) t part of the restraining clauses, and thus subject the estate to the diligence of creditors. For these reasons, it may, in particular circumstances, be advisable for future heirs to watch the proceedings of the heir in possession. (2.) In com- pleting the title of an heir, the statute requires that the pro- visions and irritant clauses shall be repeated in the rights and conveyances whereby he shall brook and enjoy the tailzied estate, and it has never been doubted that these are comprehen- sive terms applicable to the whole clauses proper to the strict entail. Rights and conveyances, in the sense of the act, in- clude all deeds and w-rits which form part of the heir's title, and therefore embrace precepts and instruments of sasine ; but it has been questioned if the retour of a general service falls within the scope of the act, since it is a mere link connecting the heir with unexecuted feudal clauses to which his predecessor had right. The Court determined that an heir omitting to insert the irritancies in the retour of his general service, had committed an act of contravention ; but the decision was re- versed on appeal, and practice has been in accordance with the opinion of the court of review (r/). (3.) A trust-convey- ance for the purpose of trying the validity of the entail in name of the trustee, does not infer contravention, provided the clauses are inserted in the reconveyance (e). (4.) The retour of a special service, as the immediate warrant on which a precept for infeftment is granted, must contain the clauses of the entail ; and it may be broadly stated, that whether an heir enter by the forms proper to that character ; or as disponee under a conveyance from a prior member of tailzie ; or in vir- tue of a service under a decree of declarator of contravention ; or under an adjudication in implement of a decree obtained to enforce a clause of devolution ; or by adjudication on a trust- bond and reconveyance by the trustee {/), he must insert the clauses in his titles. (5.) It will be observed that neither the condition to feudalise and record the deed of entail, nor this provision that each heir on his succession shall repeat the clauses in his title-deeds, will be of the slightest avail against creditors or other bona fide singular successors, un- less duly obeyed. The statute, in express words, saves their rights {g). (6.) It may thus be inferred, that questions upon 383 Deeds of 7 28 1 . I'UOVISION AS TO TITLES. J Entail. Succession. ) I the statutory formality of the titles made up by a member of tailzie, affect himself only ; and that so long as there exists, in a feudal sense, a valid title which has not been challenged by a substitute of entail, not only are singular successors safe, but the rights of vassals taking an entry from a contravener, are unaffected by the acts which he has committed in viola- tion of the tailzie. To hold that parties possessing on subal- tern rights under an entailed superiority, were bound to look beyond the mere feudal sufficiency of the title actually stand- ing in the person of the existing superior, and to judge of the effect of statutory penalties, would be to impose an intole- rable burden on vassals applying fur a renewal of their inves- titures. (a) Jurid. Styles, 1. 235. (h) 1685, c. 22, above, p. 336. (c) This seems to be competent without an express provision. See Maulo, 1st March 1782, M. 10,963. (d) Ersk. 3. 8. 30 ; Stewart, 1st Feb. 1726, M. 7275, as reversed on ap., 1 Cr. and St. 233. (e) Maclauehlan, 27th Jan. 1768, M. 15,421. (/) Sec Henderson, 12th Nov. 1796, M. 15,442. Sec Craigie, (Roxburghe entail,) 19th Jan. 1808, M. App. Adjud. No. 16 ; Maclauclilan, as above. {g) 1685, c. 22 ; above, p. 336. 282. Assignation to the title-deeds and rents — This clause does not call for special notice ; (see § 58.) 283. Obligation to relieve the heirs of debts (a). The entailer usually binds himself and his representatives to relieve the heirs of entail of the debts that may affect the estate, which thus become a burden upon his executry or se- parate estate, and the members of tailzie have a right to see that such separate estate shall be applied to their relief {b). (a) Jurid. Styles, 1 . 236. (6) Stewart v. Denham, 7th Feb. 1735, Elch. Tailzie, 3. 284. Clauses of revocation and DisrENS.\TioN (a). — (1.) In order to fulfil the feudal rule, that a conveyance of heri- tage must be dc prccseiiti, the deed of entail is in form an abso- lute disposition of the lands, to take Immediate effect, and to ex- 384 Deeds of } 284. CLAUSES OF REVOCATION, &C. J Entail. Succession, ^ (. elude the objection of non-dellvery, the delivery of the deed is dispensed with. But as is customary in mortis causa convey- ances, (see § 240,) the maker reserves a power to alter, which controls the absolute de prcesenti grant. (2.) This power of alteration and revocation need not of course be formally ex- ercised so long as the deed remains in the custody, and under the power of the entailer : the deed may be cancelled or de- stroyed (b). But if it has been recorded or put beyond his control by delivery to a party interested, or one acting for him, a revocation by deed is necessary. A deed of revocation of an entail which has not been feudalised, is effectual if it duly ex- press the will of the maker to alter his intention (c) ; but if infeftment has followed and been perfected by registration, it is necessary that the investiture thus completed be altered by a vaUd conveyance to the heir-at-law, or a new series of heirs of provision, or at least, that an obligation be duly and for- mally imposed on the heirs under the investiture so completed to reconvey the lands. Such obligation will enable the heir- at-law, or the disponee in the new conveyance, to effect a change of the investiture by adjudication in implement (r/). (3.) But if no power of revocation has been reserved, it is incompetent for the entailer, as liferenter, and the institute, as fiar, by a joint deed, to alter or revoke a feudalised entail {e). Where, however, an entail, although registered, continued personal, it was held to be revocable by the maker without the consent of the favoured parties, the deed being gratuitous, and in favour of heirs nascituri {/). (a) Jurid. Styles, 1. 241. (6) See Burnet, 9th Dec. 1701, M. 15,566. (c) See Logan, 13th Dec. 1797, M. 11,379. (d) See Porterfield, 15th May 1821, F. C, 1 S. 9 ; remitted, 2 W. S. 369, adhered to, 13th Nov. 1829, F. C, and (18th Nov.) 8 S. 16, affirmed, 5 W. S. (e) Gordon, 25th Jan. and 2d Aug. 1771, M. 15,579; affirmed, Swinton, p. 48. The authority of the prior case of E. Moray, 25th Jan. 1744, Elch. V. Tailzie, 22, B. S. 5. 734, disregarded. (/) Scott, 23d June 1713, M. 15,569. See More's Notes on Stair, cxci. 285. Procuratory for recording (a) — 1. Mode ofre- fjhtratioji The Court of Session is required by the statute of 1G85 to interpone their authority to the original deed of en- 3S5 3u'-ec!sion. \ ^So. PUOCURATOUY FOU li ECOIi DING. J Entail tail when produced judicially, and a rcg-istcr-book is appointed to be kept, " wherein shall be recorded the names of the maker " of the tailzie, and of the heirs of tailzie, and the general " designations of the lordships and baronies, and the provi- *' sions and conditions contained in the tailzie, with the fore- " said irritant and resolutive clauses subjoined thereto, to " remain in the said register ad perpetiiam rei memoriam " (Z»). (1.) Although the statute, in express words, provides that the original tailzie shall be produced judicially, it is remark- able, that in the first application {c) made for the authority of the Court to the registration of the terms of an entail, warrant should have been granted to record not the deed itself, which was in the form of a procuratory of resignation, but the charter following upon it. The objection of undue registration of that entail was, at the distance of nearly a cen- tury, sustained on the authority of the judgment in a prior case {d). (2.) The statute is retrospective, (a view which was not at first taken by the Court,) and that even where the deed was feudalised prior to its enactment {e). (3.) The terms of the statute sanction the notion, that the Legislature contempla- ted the insertion in the register of a mere abstract from the original deed. But in practice the full tenor is recorded, and the Court have refused to authorise the exclusion even of part of the lands which had been sold by the entailer (y). (4.) The necessity of registration of the entail itself is not superseded by the registration of a sasine upon the deed, or on a charter following upon it. 2. IVJio may apph/ for registration (1.) It was at an early period maintained that a substitute heir had no title to apply directly to the Court for authority to have the deed re- corded, and that the only competent remedy was by action against the member in possession, to compel him to produce the deed judicially. This circuitous course of enforcing a measure essential to the completion of a right in which all the substitutes have a contingent interest appears, indeed, to have in one instance been sanctioned by the Court (jj) ; but it has since been abandoned ; and although the entailer or the in- stitute is the proper party to produce the deed for registra- tion, it is now held that any substitute, however remote, may 2 B 38G Deeds of ) 285. PROCURATORY FOR RECORDING. ] Entail. Succession. ) t obtain the authority of the Court, if he can produce the deed (/O, or force it from the party possessor by incident dilio-ence, which will be granted for that pnrpose {i) ; but an heir-female cannot apply without the concurrence of her hus- band, even where the Jus mariti and right of administration, in regard to the estate, are excluded (A). If the deed shall have been recorded in any other register, warrant will be obtained for its transmission to the process (/). (2.) It has been questioned if an heir whomsoever has a title to apply for reo-istration (m). (3.) As entails are usually in the form . of a mortis causa conveyance, the statute would, in most cases, be inoperative, unless registration were admitted as well after as before the death of the entailer, and this has uniformly been sanctioned {n). (4.) The form of the application is by sum- mary petition (o). It would appear, therefore, that this clause is not of any real use. (a) And also I hereby grant full power and commission to as my procurators or to any one of the heirs or persons members of tailzie foresaid to cause pi-esent this deed of entail before the Lords of Council and Session judicially and procure the same recorded in the register of tailzies and to expede charters and infeftments thereon agreeable thereto and in terms of the Act of Pai'liament passed in the year 1685 anent tailzies : And I oblige my said disponee or heirs of tailzie for the time to reim- burse and pay the whole charges of recording these presents to the person who disburses the same with the double of the costs of any process which sucli person shall raise and prosecute for obtaining the reimbursement thereof. (&) 1685, c. 22, seep. 336. (c) See Irvine, below. (rf) Irvine, 26th June 1776, M. 15,617, and App. v. Tailzie, No. 1 ; affirm- ed, 16th April 1777; on authority of Kinnaird, 26th Nov. 1761, M. 15,611; afTirmed, 18th Feb. 1765. (e) Philp V. E. Rothes, 14th Dec. 1758, M. 15,609, B. S. 5. 365-869, affirmed; Kinnaird, as above; E. of Roseberry, 22d June 1765, M. 15,616; Irvine, as above. (/) Moore, 28th Nov. 1821, F. C, 1 S. 173. (9) Drummond, noticed in Nairno, below. (/() Ersk. 3. 8. 26; Bell's Princ. 1742; Nairne, 10th March 1757, M. 15,605; B. S. 5. 335. See Reid, 25th Feb. 1710, B. S. 4. 794; Napier, 20th July 1762, B. S. 5. 888 ; Gordon, 11th Jan. 1704, M. 5787. (i) Ker, 7th July 1804, M. 14,984. (A) Hamilton, 11th March 1777, B. S. 5. 625. (Z) Campbell, 14th Nov. 1748; Elch. v. Tailzie, 35, (m) Jessop, 7th Feb. 1822, 1 S. 294. (n) See cases, note (A), above. (o) Ersk. as above ; Ker, as above ; Bell's Princ. 1742 ; Jurid. Stylos, 3. 907. 387 Deeds of I ^86. PRECEPT OF SASINE. J Entail. 286. Precept of sasine This clause may contain a bare reference to the conditions, prohibitions, and forfeiting clauses, if they are duly expressed in a prior clause. (See § 254.) 287. Infeftment. — (I .) In the sasine upon the deed of entail, the essential peculiarity in point of form is, that it contains the whole conditions, prohibitions, clauses irritant and resolutive, and provisions of the tailzie. These are in- troduced in the narrative of the warrant of infeftment, and referred to in the narrative of the delivery of sasine (a). (2.) In regard to eflect, it will be observed, that as a step in the feudal title, the sasine will be valid, although the whole restraining clauses of the entail are omitted. The omission of a part of the destination subsequent to the name or descrip- tion of the heir in possession, or of the conditions, prohibi- tions, irritant or resolutive clauses or provisions of the deed, although operating as an act of contravention, will not annul the sasine ; and although the right of the contravener will be forfeited in so far as the estate has not been alienated or evicted, the statute protects the interests of creditors and pur- chasers contracting hona fide with the contravener (i). Fu- ture heirs have thus a manifest interest to see that proper titles are made up under the entail. Frauds against the sub- stitutes have been attempted, but there is not much risk of their occurring in modern practice. (a) Jurid. Styles, 1. 270. (6) See the statute, p. 336. 288. Entry with the superior In completing a pub- lic right under a deed of entail, the institute, or first person taking up the succession, will enter according to the state of the title ; and, in a feudal respect, the procedure does not call for particular remark. It will be observed that charters are among the deeds enumerated in the statute, and that the acceptance of a charter from the superior, which does not contain the conditions, provisions, prohibitions, and irritant and resolutive clauses of the entail, will infer an act of contra- vention on the part of a member of tailzie (a). (o) 1685, 1-. 22. above, p. .3.3(). 388 „^^^*^*.°^ { 289. STATUTES. 5^>"tail. Succession. ) I 289. Statutes. — It followed from the nature and purpose of a completed entail, that the members of tailzie were excluded from the exercise of the rights of unlimited fiars beyond their own respective life-interests, vmless to the extent of the powers expressly conferred by the entailer. In order to relax the re- straints imposed by the statute of 1685, the Legislature has, from time to time, made enactments, founded upon expediency and obvious utility, whereby certain powers are conferred on the members of tailzies, without regard to the terms of the entail under which they possess their estates. These powers may thus, in some instances, fall short of the express faculties contained in the deeds, although in general they exceed them. In a work of this description it is sufficient to refer to the statutes themselves. The principal are, (1.) The act of 20 Geo. II. («), which confers a power on members of tailzie to sell and convey superiorities to the vassals, the price to be laid out in lands to be settled under the fetters of the entail. (2.) The act of 10 Geo. III. (i), which relates to improving and building leases, improvements on lands, building and re- pairing mansion-houses, and excambions. (3.) The act of 42 Geo. III. (c), which authorises sales for redemption of the land-tax. (4.) The act of 59 Geo. III. {d), relative to the building of gaols. (5.) The act of 4 Geo. IV. [e], which enables the heirs to burden the estate to the extent of a year's rent, for the expense of making roads. (6.) The act of 5 Geo. IV. (f), commonly called Lord Aberdeen's Act, which gives power to provide husbands and wives. ( See Marriage- Contract.) (7.) The act of 6 and 7 William IV. (y), relative to sales for payment of entailer's debts, granting tacks and making excambions. (8.) The act of 1 and 2 Victoria (/*), which extends the provisions of the statute of William IV. as respects tacks and excambions. (a) 20 Geo. II. c. 50. (&) 10 Geo. ni. c. 61. (c) 42 Geo. III. c. 116. (d) 59 Geo. III. c. 61. (e) 4 Geo. IV. c. 49. (/) 5 Geo. IV. c. 87. \g) 6 and 7 Will. IV. c. 42. (Ji) 1 and 2 Vict. c. 70. 380 Deeds of ) ^r.rv < MaiTiagc Successil 290. INTRODUCTOUV UEMAUKS. { Contract. TITLE IV. MARRIAGE-CONTRACT OR SETTLEMENT. 290. Introductory remarks. — The contract of mar- riage, as its name imports, is a deed of agreement, which, in the ordinary case, is bilateral, but becomes by the accession of other parties, e. g. of the father of one or other of the spouses, a multilateral writ. Deeds of this description are the products of civilisation, their purpose being either to enlarge or restrict the legal rights of the spouses. These rights were, at an early period, sufficient for the regulation of the pecuniary affairs of the parties, and the distribution of their property after the dissolution of the marriage ; but after capital had accumulated, and land acquired increased value by cultivation, the simple rules of law were found, in many in- stances, to be inconvenient and unsuited to the circumstances of persons contracting marriage, who came thus, by mutual arrangements, to establish particular codes for themselves adapted to the circumstances of each individual case. These, to exclude the operation of the law, behoved to be reduced to writing, and hence the origin of our contracts of marriage. As respected the moveable property of the contracting parties, the rules of law were without difficulty controlled or superseded; but when they were possessed of heritage, even the favour ex- tended to matrimonial arrangements could not in every instance bend the feudal usages to their purposes. Craig {a) informs us that a father could not give infeftment to his daughter in more than the one-half of his lands nomine dot/'s, without incurring recognition, although he might validly confer a right to the rents for a certain number of years ; and although the contrary rule prevailed where a wife conveyed her estate to her hus- band, it was founded on a presumption that the superior had consented to the marriage. The transmission of heritage being now unfettered by feudal restraints, its destination may, without difficulty, be regidated in the marriage-contract, (a) Craig, 3. 3. 18. 291. Ante and postnlptiai A marriage-settlement may be antenuptial or postnuptial, entered into before or after :590 J^oea. oi I 291. ANTE AND POSTNUPTIAL. 1 c.ntr-.rf Succession. S L '-onuati. the celebration of the marriage. An antenuptial contract is in law an onerous deed, and is a good title in competition with creditors. It is in all cases, therefore, advisable to enter into a contract before marriage, where the parties intend to make their affairs the subject of express arrangement. A post- nuptial contract, however, is not absolutely null. Although exceptionable in a question with creditors, it is binding on the parties and their heirs, and is not subject to alteration in the contract of a subsequent marriage, to the extent at least of a reasonable provision (a). But a postnuptial contract, in which there is much inequality, has been held to be subject to revocation, as donatio inter virum et iixorem (b). (a) See Ersk. 4. 1. 33-4; Bell's Princ. § 1942; Wood, 3d Dec. 1823, F. C, 21, 549 ; Jeffrey, 24th May 1825, 4 S. 32 ; Bell's Com. 1. 636, 641, and 2. p. 188, 190. (&) Steven, 1st Feb. 1809, F. C. See as to donations inter virum et uxorem, Bell's Princ. 1616, et seq. andcasescit. See Anderson, 27tli Jan. 1837, 15 D. 435; Craigie, 17th June 1837, 15 D. 1157. 292. Rules OF construction The husband, as persona (Iif/7iior, the head of the family, is in cluhio presumed uncon- trolled proprietor of the subjects, whether heritable or move- able, in the possession of the spouses. In interpreting clauses relatinff to the fee and liferent of lands contained in contracts of marriage, this principle is of constant application ; and although the presumption may be excluded by express words, or even clear indication of a contrary intention («), the cir- cumstances are few in which it is controlled by law. It is a rule of practice, therefore, to employ terms that admit of no ambiguity, in all cases where it is intended to limit the rights and powers of the husband. The subject of marriage-con- tracts is extensive. The clauses vary much, according to the wi.shes of the parties ; and all that can be attempted here is some account of the more ordinary clauses of contracts which relate principally to heritage. The clauses contained in the common form of the contract are sixteen in number, viz. the introductory clause ; the dispositive ; the obligation to infeft ; clause conferring provisions on the wife or husband ; tenendas and reddendo ; procuratory of resignation ; clause conferring provisions on the younger children ; discharge of the wife or 301 Deeds of 1 ,-,,, ^ ^^^ ^^. ^^j;s,-,iLt..r,ON. j SraT Succession. ) ( Contract. husband's legal claims; discharge of the children's legal claims ; assignation by the wife or husband ; declaration as to the subsistence of the provisions ; appointment of trustees ; clause of registration ; precept of sasine ; and testing clause (b). (a) Sec Young, 2d Dec. 1833, 14 D. 85. (I,) Jurid. Styles, 1. 174, and foil. 293. Introductory clause (a) — (I.) The inductive cause of the contract of marriage is the intended marriage of the parties. By its express terms they accept of each other for lawful spouses ; and although these words are not evidence of a completed marriage, they are manifestly proof sufficient of a mutual promise of marriage. The marriage of the parties is the true onerous cause of the deed, and not the conveyance of property, which may be all on one side (b). (2.) Where, again, the contract is postnuptial, the completion of the mar- riage will be stated, and the wife will bind herself, with the consent of her husband. (3.) Persons who have attained the age of puberty may lawfully contract marriage (c) ; and where either party is minor, the father or other legal guardian, if there be such, must join as a consenter in order to validate the conveyance of the minor's heritage. Such consent, however, will not exclude the plea of minority and lesion at the instance of the minor as to provisions contained in the contract in fa- vour of third parties, e.ff. the relations of one of the spouses ; but it is not relevant to infer lesion that there is an undue proportion between the tocher and the husband's property, and a minor may competently provide his spouse in the life- rent of his whole estate. Enorm lesion may however be in- ferred by an unusual destination of the property of one of the spouses, e. g. where the wife has made a conveyance to the husband without retaining her own liferent (rZ). (a) It is CONTRACTED AGREED AND MATBIMONIALLY ENDED bctwixt A. On the one part and B. on the other part as follows viz. the said parties have agreed to accept and hereby accept of each other for lawful spouses and bind and OBLIGE themselves to solemnise their marriage with all convenient speed in usual form. (t) See Wightman, 30fh July 1777, M. 9201. (r) Ersk. 1. 7. 34-38. (rf) Ersk. 1. 7. 38; Davidson, 4lh July IG32, M. 8988; M'Gill, 22d Nov. 1664, M. 5G9C. 392 Deeds of ) 4i,, , f MaiTiase Succession. { -''^•^- DI«l'OSITlVE CLAUSE. \ ^^^^^^^^ 294. Dispositive clause (a). — This clause is employed to express the destination of the heritage which both or either of the spouses is possessed of, or may receive from a relation. The nature of the conveyance is of course mainly influenced by the extent of the property. If it is a considerable family estate, the object of the parties will in most instances be to have it settled upon the heir-male of the marriage, and fail- ing him, of the heir-male of any subsequent marriage of the party to whom the estate belongs, either in the form of a destination or a strict entail. A conveyance of the nature of a simple destination, under a reserved power to make an entail, is exemplified in the form given in the notes. The other spouse is, in this case, usually provided with the liferent of the lands, or a mere liferent annuity. In the form to which reference is made, the estate is assumed to belong to the husband. "Where, again, it is the wife's, the conveyance will be by her ; and if both spouses are possessed of land property, the dispositive clause will be mutual, sometimes only one of the estates being provided to the eldest, the other being destined to the second son of the marriage, with the usual substitutions {b). To provide for the disjunction of the estates in case of the exist- ence of only one son, a clause may be introduced, in the terms expressed below (c). (a) In contemplation of which mannage and in consideration of the provisions in his favour herein-after written the said A. hereby dispones and conveys to and in favour of himself and the heirs-male of the said intended marriage whom failing to the heirs-male to be procreated of his body in any subsequent marriage whom failing to the heirs-female of this intended marriage or any subsequent marriage w'hom failing fawy other mtotded substitutes) whom all failing to the said A. his heirs and assignees whomsoever the eldest heir-female tliroughout the whole course of the succession of females excluding heirs-portioners and succeeding always without division heritably and irredeemably All and whole (the lands) together with all right title and interest which the said A. has or can pretend to the same or any part thereof reseiiving to the said A. full power to execute a strict entail under the statute anent tailzies passed in the year 1685 of the whole or any part of the lands and estate above described provided always that he shall in such entail first call to the succession the heirs and persons above mentioned in the order of the foresaid destination and thereafter such other heirs as he shall think proper. (i) Jurid. Styles, 1. 184. (c) And it is hereby expressly phoviued and declared that in case the se- cond or failing liim the younger son of this marriage who hath succeeded to the lands and estate of the said B. under the provibion above expressed, shall there- 393 Deeds of ) 294. DISPOSITIVE CLAUSE. ^Marriage Succession. ) ( Contract. after succeed to the foresaid lands and estate of tlie said A. tlicn and in that case the foresaid hinds and estate of the said B. shall fall and devolve to the next younger son of this present marriage and the hcirs-niale of his body in whose favour the elder brotlier so succeeding to the lands and estate of the said A. shall be obliged to denude of the foresaid lands and estate of the said B. ; and failin" any such younger brother and the heirs-male of his body the younger son so suc- ceeding to the lands and estate of the said A. as aforesaid shall denude of the said other lands and estate in favour of his own second son whom failing his younger sons and the heirs-male of their bodies in their order whom failing in favour of the daughters of this present marriage in their order excluding heirs-portioncrs and of the heirs-male of their bodies whom all failing in favour of the person who shall at the time bo entitled to succeed to the said lands and estate of the said A. failing the nearest and lawful heir of the said younger son. 295. Conjunct fee and liferent 1. Terms of desti- nations to the spouses and the children. — When the property is not of the description of a family estate, it is usual to settle it on the spouses, and the heirs or bairns and children of the marriage. The structure of such destinations is of considerable intricacy. In family questions, the terms, con- junct fee and liferent, used with relation to feudal rights, and the quasi fcuda of bonds, have a sense materially different from that which they bear in conveyances to strangers. They import a fee, absolute or fiduciary, in the person of one of the spouses, more generally the husband, according as they are used, and even a liferent in words often imports a right of fee. {!.) Thus, as a conveyance to the husba7id and wife in conjunct fee and liferent, or to both or either of the spouses in liferent simply, or for liferent rir/ht and use, and to the heirs of the viarriatje in fee, cannot vest a fee in heirs who have no exist- ence, the presumed intention is to leave the fee with the hus- band as head of the family, (or the spouse expressly pointed out,) a presumption supported by the feudal necessity that the fee should vest somewhere, as it cannot be in pendente (a). (2.) But this extreme nicety of construction is excluded by the use of the taxative word allenarlij or ouli/, or some equivalent expression, to restrict the right of the parent to a mere life- rent ; and in that case the feudal difficulty in regard to the vesting of the fee is removed, by siqiposing a fiduciary fee, (fdcs comuiissaria,) in the parent for belu)of of the children nascituri, which accresces to the heir of the marriage on his birth (Z»). (3.) Where, again, the com cvance is made to the 394 Deeds of ) 295. CONJUNCT FEE AND LIFERENT. j r L'i^f Succession. ) I ^-/ontiact. spouses m conjunct fee and liferent ; or to both or either in liferent ; and to children in existence in fee — forms appUcable to a postmiptial contract ; if that existence be feudally de- clared, by introducing their names in the dispositive clause, the difficulty has no place, and the right of the parents is a naked liferent (c). The same rule holds where the right is taken to the spouses in liferent, and to certain children nomi- nating and to those who shall be thereafter procreated, equally among them, in fee, those named taking the fee subject to a claim in the unborn fiars, if any shall exist, for their share {d) ; and a reserved power of disposal, although conferring the substantial right of property, does not retain the feudal fee of . the subject in the parent {e). But if the conveyance in a postnuptial contract be to the parents in conjunct fee and liferent, (and not in liferent merely,) with a reserved faculty to convey and burden the lands at pleasure, and to a child or children nominatim, or to the issue of the marriage natis et nascituris, in fee, without a restrictive term, the matrimonial becomes a feudal fee by force of the reserved powers, and the father, under this form of words, is therefore absolute proprie- tor of the subjects (/). A material distinction here maintains between the terms in liferent, and in conjunct fee and liferent. (4.) The right of the parent may be restricted to a liferent by means of a trust for behoof of the spouses, and their chil- dren although unborn, in liferent and fee, or words which clearly exclude the presumption in favour of the parent's right of absolute fee. Thus, if one in his son's marriage-contract obliges himself to employ a sum of money in the purchase of land, and to take the rights to trustees for the husband in liferent, and the heirs-male to be procreated of the marriage in fee, the husband has a liferent only {(j). And a similar construction is put on a clause whereby persons are appointed to see the terms of the destination implemented (A). Thus, in like manner, the words liferent alimentary restrict the right in the husband {i). In questions of this description money provisions in contracts of marriage seem to follow the same rules as heritage {U). 2. Practical rules But although equivalents are ad- mitted to limit the powers of the husband or wife in such des- tinations, the plain duty of the conveyancer is to employ tbe :J95 D.-ckof } 2f^j^^ CONJUNCT FEE AND LIFERENT. | Marriage Succession. S j- i . ^ Contract. words of style. The following rules seem to be established : (I). A conveyance to A. and B. spouses, and the longest liver, in conjunct fee and liferent, for their liferent use allenurhj, and to the heirs of the marriafje in fee, gives the s})ouscs a right of liferent only, and the father a fiduciary fee for the heir of the marriage. These terms, therefore, may be employed when it is intended that the property shall not bo in the father's power of disposal, or affectable for his debts. The same end may, it is thought, be attained by making the husband in name, instead of merely in laic, a trustee for the children (Z). (2.) It follows that the terras above expressed, exclusive of the taxative word allenarly, import not a liferent only, but an absolute right of fee in the husband. These may be used, therefore, where it is not in- tended to debar the father's power of onerous disposal. (3.) When children arc in existence, as in the case of a postnup- tial contract, the following terms may be used : To A. and D., spouses, and the survivor, in conjunct fee and liferent, (or in con- junct liferent,) for their liferent 7tse allenarly, and to C. and D., their childre7i, and the other children to he procreated qf the marriage, in fee. The use of the word allenarly, although perhaps not essential, removes all ambiguity. (4.) The right conferred on the wife by the terms under consideration is that of a liferent contingent on her survivance. If it is intended that she shall have the fee, the husband a bare liferent, and the children a spes successionis, the destination may be thus express- ed : To and in favour of A. and B. spouses, in conjunct fee and lij'ercnt, for the said A. his liferent use allenarly, and to the heirs of the marriage in fee. (5.) It is to be observed, that the effect of the taxative word allenarly used in a destination in conjunct fee and liferent, and to the heirs iiascituris in fee, will be controlled by a reserved power to the husband or wife to dispose of the property, the right in the parent becoming thereby absolute (w). (6.) In destinations in marriage-con- tracts, the terms heirs, heirs and bairns, heirs to be laufully procreated of the wife's body or of the marriage, heirs or bairns, heirs or children one or more, are interpreted in reference to feu- dal subjects, and quasi J^uda, to mean the heir in heritage, if it cannot be discovered from the context that the intention of the parties was to give the property equally among them [n). But when the purpose can be gathered from the deed, it is a 396 Deeilsof 1 295. CONJUNCT FEE AND LIFERENT. 1 cjHtrS^ Succession. ) '■ qucBstio voluntatis. Tims, where the father reserves a power of division, and to apportion the shares of the children, the presumption is that the whole is not intended for the eldest son or his heir (o). (7.) The terms bairns and children, bairns of the marriage, or child or children, on the other hand, ex- clude the heir as such, and include all the issue of the mar- riao-e {p), unless the words, besides the heir, or an equivalent expression, be employed ; but terms of this import will ex- clude heirs-portioners from the benefit of the provision in a question with creditors [q). (8.) When it is intended that the subject shall descend undivided, heirs-portioners will be ex- cluded by the terms, the eldest daughter or heir-female always succeeding loithout division, to the exclusion of heirs-portioners. («) Frog, 25th Nov. 1735, M. 4262; LiUie, 24th Feb. 1741, M. 4267; Douglas, 7th July 1761, M. 4269; Cuthbertson, 1st March 1781, M. 4279; LincTsay' 9th Dee. 1807, M. App. Fiar, No. 1 ; M'Donald, 14th Jan. 1831, F. C, 9 S. 269. SeeDirleton, v. Fee; Dewar, 5th Feb. 1821 ; affirmed, W. S. 1. 161 ; Kennedy, 19th Feb. 1825, 3 S. 554. {h) Newlands, 9th July 1794, M. 4289; Thomson, 9th July 1794; Bell, 72 ; Watherstone, 25th Nov. 1801, M. 4297 ; Falconer, 20th Jan. 1825, F. C, 3 S. 455; Rollo, 28th Nov. 1832, F. C, 11 S. 132. (c) Boyd, 28th June 1774, M. 3070; M'Intosh, 28th Jan. 1812, F. C. (d) Dykes, 3d June 1813, F. C. See Macdonald, as in (a). (e) Baillie, 23d Feb. 1809, F. C. ; AVilson, 14th Dec. 1819, F. C. ; Steele, 23d Jan. 1823, F. C, 2 S. 146. (/) Wilson and Steele, as above. {g) Seton, 6th March 1793, M. 4219. See Watt v. Ewan, 10th July 1828, F. C. 6 S. 1125; Nelson v. Corners, 1781 ; Sandford on Succession, 1. 231. \h) Mcin, 8th July 1827, F. C, 6 S. 779; affirmed, 4 W. S. 22. (j) Gerran, 14th June 1781, M. 4402. {k) Gerran, as in (/) ; Williamson, 28th June 1828, F. C, 6 S. 1035; Hollo, as in {h). (l) Jurid. Styles, 1. 212. See Dirleton, v. Fee; Gibson, 4th Feb. 1726, M. 12,885. (»i) See cases in (b). («) Fairservicc, 17th June 1789, M. 2317; Dollar, 4th Dec. 1792, M. 13,008; Rcid, 18th Nov. 1788, M. 14,483; Bowie, 23d Feb. 1809, F. C. ; Duncan, 9th Feb. 1813, F. C. (o) Scot, Feb. 1684, M. 12,842; Wilson, 1st Dec. 1769, M. 12,845; Hailes, 1. 313. (/,) Ersk. 3. 8. 48; Duncan, as in (w) ; Hay, 17th Feb. 1663, M. 12,839 Carnegie, 13th Feb. 1677, M. 12,840 ; Kinloch, 21st Jan. 1678, M. 12,841 Brown, 21st July 1680, M. 12,842; Bryce, 23d June 1786, M. 13,042 Pollock r. Waddell, 19th Juno 1828, F. C, 6 S. 999. See Pringle, 21st Jan 1741, Elch. Mtit. Cont. 15; M. 11,446-9; reversed, Cr. and St. 1. 297. (V) See Boyd, 6th Jan. 1670, and 20th Dec. 1671, M. 12,854. 397 Deeds of J 2i)G. SUBSTITUTIONS. piarriage Succession. ) ( Contract. 296. Conveyances with substitutions — 1. Reasons for an express substitution — (1.) The examples given in § 295, relate to destinations to the spouses, or one of them, in fee and liferent, and to the issue of the marriage. Under sucli a destination, the property, on the failure of heirs of the mar- riage, will devolve to the heirs of the party who is accounted fiar, or revert to the grantor when no fee belongs to either of the spouses. Thus, a subject conveyed to-^. andB., spouses^ and their heirs, although coming from the wife's relations, belongs, on the failure of issue of the marriage, to the husband. (2.) It is therefore usual to substitute other heirs to the heirs of the marriage, and the terms of the substitution may influence the question, which if the spouses is to be considered as fiar. This question may be of considerable importance, for the rea- son, that a different rule prevails with respect to the powers of the fiar in dealing with a mere substitution or simple de- stination, from that which regulates a conveyance to children unborn. These last, it has been seen, have a spes success ionis^ which can be defeated for onerous causes only ; but the right in substitutes who arc strangers, e. fj. the heirs whatsoever of either of the spouses, or the heirs of a subsequent marriage, may be cut off by a gratuitous conveyance; (above, § 248.) 2. Clauses with substitutions In framing clauses with substitutions, care must therefore be taken to give the fee where it is the intention of parties that it should vest, as the rules of construction are somewhat arbitrary. For example, under a destination to the husband and wife, and loncjcst liver of them two, in liferent or conjunct fee, and the heirs between them, whom failing, the wifes heirs and assignees whomsoever, the fee was held to be in the husband (a). But in a case precisely similar an opposite decision was given (h). The interpre- tation of such clauses seems, in dubio, to depend on these par- ticulars : first, whether the subject flowed from the wife or her friends; secondig, whether it came as tocher; and, tJiirdh/, whether the heirs first called in the substitution, after the heirs of the marriage, are those of the husband or the wife. In the first case, the presumption is in favour of the wife's right of fee, and in the second of the husband's ; but in the last, the result may depend on the occurrence of one or other of the two for- 3S8 s?;:ti„":.j 296. SUBSTITUTIONS. iss mer circumstances, or other matters extraneous to the mere form of expression (c). It is advisable, therefore, to employ terms which leave no room for discussion, as to the rights of the spouses ; (below, Art. 3.) 3. Practical rules (1.) When it is intended, there- fore, that the property shall belong absolutely to the wife, fail- ing heirs of the marriage, the clause may be framed thus, To A.andB., spouses, in conjunct fee and liferent, for tlie said A., his liferent use ollenarly, and the heirs-male of the marriage, and the heirs lohatsoever of their bodies in fee ; lohom failing, to the heirs-male of the said B. in any subsequent marriage, and the heirs whatsoever of their bodies ; whom failing, to the heirs- female of the intended marriage, and the heirs lohatsoever of their bodies ; whom failing , to the heirs and assignees lohomso- ever of the said B. (2.) The omission of the special life- rent to A. and the substitution to B.'s heirs and assignees, will give the fee to the husband. (3.) If the fee is to belong to the survivor of the spouses, failing heirs of the marriage, the terms may be, to A. and B. spouses, and the longest liver, and the heirs of the longest liver. It is proper to frame the clause as here expressed, in order to exclude all doubt as to in- tention ; for although later authorities (d.) interpret the words, to A. and B., spouses, and the longest liver and their heirs, in favour of the wife's right of fee in the event of her survivance, the old construction was different (e) ; and from the result of a recent case, it would seem that the clause, in this latter form, will be interpreted according to circumstances (/). (4.) The terms, to A. andB., sjiouses, and their heirs, give the fee to the heirs of the husband {g). (5.) But under these several forms, the fee, and consequently the power of disposal, is in the hus- band, during his lifetime. In order to restrict his right to a liferent, the clause may be conceived in favour of the spouses, in conjunct liferent allenarly, and to the survivor or longest liver, and their heirs, or the heirs of the survivor, in fee (Ji). («) Gairns, 12th July 1G71, M. 4230. See Crs. of Eliot, July 1720, M. 4244. (J,) Angus, June 1733, M. 4244; Fead Drover, 4th Feb. 1709, M. 4240. (c) Wordie, 18th July 17.'>0, M. 4207; Bruce Henderson, 20lh Jan. 1790, M. 4215. Sec Sinclair, 20th Nov. 1771, M. 4241. 391) Deeds of i 290. SUBSTITUTIONS. J MarmBc Succession. ) ( Contract. (rf) Ersk. 3. 8. 36 ; Ferguson, 22(1 June 1739, M. 4202 ; Riddells, 6th Nov. 1747, M. 4203; Boyd, 22d Nov. 1749, M. 4205. (e) Stair, 2. 6. 10; Justice, 23d Jan. 1G68, M. 4228. (/) Murray, 19th May 1826, F. C, 4 S. 589. Sec Macgrcgor, 3d June 1831, 9 S. 675. (). A short account of the nature of these rights may not be out of place here. (a) 1681, c. 10. Our Soveraine Lord considering that sometimes through the ignorance and inadvertcncio of some writtors and nottars, clauses arc insert in contracts of marriage, containing provisions \iy husbands in favour of their wives, without mentioning the terce that is due to her by law, or expressing the provision to be granted in satisfaction of the terce ; whereby occasion is given to relicts to claime a terce out of their husbands' estates by and attour the pro- vision conceived in their favours, contrary to the meaning and intention of the parties contractors. For remeid whereof the King's Majesty with advice and con- sent of the Estates of Parliament statutes and ordains that in time coming where there shall be a particular provision granted by an Inisband in favours of his wife, cither in a contract of marriage or some other writ, before or after the 2 c 2 404 Deeds of I 301. PROVISIONS TO THE WIFE OR HUSBAND. \ Succession. ) ( Marriage Contract. marriage, tliat the wife shall bo thereby secluded from a terco out of any lands or annualrents belonging to her husband, unless it be expressly provided in the contract of marriage or other writ containing the said provision, that the wife shall have right to a terce by and attour the particular provision conceived in lier favours : But prejudice always to the Lords of Session to determine as to contracts of marriage or provisions already made according to the former law and custom.— Stair, 2. 6. 17 ; Ersk. 2. 9, 45. (b) Bell's Princ. 1 948. 302. Terce (a). — 1. Introductory/ remarks. — Terce may be defined, the right of a widow to the liferent of a third of the heritable subjects in which her husband died vested and seised, after deducting the annualrent of the real burdens imposed on them by law or by the act of the deceased ; and as a rio-ht of liferent, it must be exercised salva substantia (i). Its origin is ascribed by Mr Erskine to the natural right which a wife has to a settlement out of her husband's estate in the event of her survivance (c). It obtained by our most ancient customs, and was a third of the heritage in which the hus- band was infeft at the time of the marriage, which he had no power to increase (d). In course of time, when conventional provisions were introduced, it became usual to give the wife a liferent infeftment to such an amount as to equal, if not exceed the terce, in order to avoid the forms of making the legal provision effectual ; and when the conventional happen- ed to exceed the legal liferent, it was " always retrenched " into the terce" (e). But it seems to have been attempted to claim both provisions, unless where it was expressly condi- tioned in the marriage-settlement that the conventional pro- vision was granted and accepted in full of the former, — a pre- tension too exorbitant for the gallantry of the age (f). And it woidd appear that a demand of this nature against the hus- band's heir, exceeding the one half of his estate, was the proxi- mate cause of the statute of 1681 (//), which substituted con- ventional provisions made in favour of the wife, in place of the legal provision of the terce (A). 2. When due. — Terce may be claimed when the mar- riage had subsisted for a year and a day, or produced a child which was heard to cry (^) ; and the rule holds, although the child had been born before the declaration of tlie mar- riage (h). 405 .^-■^-^ j 302. TLKCE. Sf'^^Sr Siiccussion. i ( Contract. 3. IVhat subjects it affects Terce, as a general rule, Is due out of all heritable subjects and rights in which the husband died infeft, his sasine being the measure of the right, but not where the substantial right of fee belongs to a third party, e. rj. a nominal lifercnter having a power of disposal (/). (I.) In particular, it is due out of lands and the pertinents of lands, houses and other buildings (m). It is in express terms stated by Mr Erskine, that when the hus- band dies possessed of two mansion-houses or country seats, the widow is entitled to the second ; but doubts have been expressed of the soundness of the opinion {n). Where there is only one, terce is not due if the heir choose to occupy it ; otherwise the widow's right to reside in it, paying two-thirds of a reasonable rent, has been recognised. In a later case, she was found entitled to the terce of the mansion-house and gar- den (o). (2.) Terce is due out of real securities by infeft- nient (y-*) ; but it has been doubted if these include burdens by reservation {q). A distinction may perhaps be drawn between burdens, in relation to which the infeftment of the disponcr is expressly reserved (r), and those created in the form of real liens in favour of third parries, which merely burden the infeft- ment of another; (§ 13G.) (3.) It affects tenements and houses in villages, and in burghs of regality and barony, and even in burghs royal, if not held by the tenure of burgage {/). 4. Exceptions The subjects which terce does not affect are superiorities, and consequently the duties attaching to them (0 ; reversions prior to redemption («) ; patronages, as indivisible {v) ; leases, as not feudal {w) ; coal, and perhaps the products of other mines, as being part of the soil and not its annual increase (.t) ; teinds, unless where there is an in- feftment in them by erection (y) ; and subjects held in bur- gage {z). 5. IIoic excluded (1.) Terce is excluded by a sj)e- cial provision, granted by the husband in a contract of mar- rian-e or other writ, whether in contemidation or after the celebration of the marriage {(la). The statute plainly im- ports that the provision shall be equally valuable as the terce ; but the acceptance by the wife of a provision, of whatever amount, as in lieu of terce, implies a discharge of the legal 406 c^^'-^^^W 302.TEUCE. {S:Si Succession. S '■ '■^on"^ci. liferent (bb) ; and it would appear that it does not revive, in tlie event of the conventional provision becoming unavail- able (cc). A distinction may perhaps maintain between a con- ventional provision, thus expressly accepted as in place of the terce, ancl one accepted simply, which is less than the legal provision. When the right to the terce is expressly reserved in the deed granting the provision, the statute establishes an exception in favour of the widow ; and even where the inten- tion of the husband not to exclude the terce is plain, it will receive effect. But the wife cannot qualify her acceptance of a conventional provision, by a reservation of her right to the terce, without the consent of the husband, although she may take or reject the provision at her pleasure (dd). (2.) Terce is excluded by infeftment in favour of a purchaser, adjudger, or bona fide disponee, or by resignation ad remanentiam duly completed prior to the husband's death ; but not by a con- veyance or adjudication which remains a personal right {ee). It is said that the sasine of the disponee or adjudger must be duly registered prior to the husband's death ; and this seems in accordance with the principle, that the husband's sasine is both the measure and security of the terce, which can therefore be affected by such rights only as exclude his sasine {ff). (3.) The terce of the widows of heirs of tailzie may be excluded by an express clause in the deed of entail, and that although the destination be not fenced with the sta- tutory irritancies. But it seems not to admit of doubt, that the restrictive declaration must appear in the sasines of the members of tailzie. It follows, perhaps, that as a tailzie without irritant and relative clauses is a mere destination, the terce may be effectually excluded in an ordinary deed of settlement (^^). 6. How restricted (1.) Terce is restricted by real burdens, whether by constitution or reservation, duly completed by a sasine registered before the husband's death {hh) \ but the principal sums are not brought into computation, so as to affect the terce, which is a third of the free rents ; and when rent is derived from subjects, such as coal, not affected by the terce, the creditor draws his interest, if it do not exhaust the whole rents, proi)ortionally from the lands and coal (»). 407 «^^"''^"' \ 302.TiniCE. \cZllZ Succession. J I Contract. (2.) An absolute conveyance qualified by back-bond does not exclude the tercc, but has a mere restrictive effect to the extent of the suras with which the reversion is burdened, whence it may be inferred that terce affects the radical right of one who has granted a trust-conveyance of his estate {hh). (3.) Tercc is restricted by the teind-duty, unless the widow shall under- take to pay minister's stipend (//). 7. Not affected hij deeds infraudem (1.) Tercc (or at least a provision in lieu of it) is not excluded by deeds granted, by the husband infraudcm of the right, e. g. by his divesting himself of the heritage in which he is infcft, in favour of his heir [inm) ; or by inexcusable delay to feudalise a per- sonal right to lands {mn). But in such cases the widow has only a right of action against her husband's representatives. (2.) Nor is it excluded as in a question with the heir of line, by the reduction of the husband's sasine after his decease, on the ground of informality [oo). (3.) When lands which are subject to the terce have been sold by the heir, the widow may claim either her liferent of a third of the lands, or indemnifi- cation from the heir (z^;;). 8. Lesser terce If the lands in which the husband died infeft are subject to the terce of the widow of a former proprietor, his widow has right to a third only of the remaining two-thirds, which is styled the lesser terce. It is increased to the full legal extent on the death of the first tercer {qq). 9. Howjixed (1.) Terce takes cff'ect at the husband's death. Its extent is ascertained by a brieve (/•/•) directed to the sheriff" of the shire where the lands lie. The heads of inquiry are,Jirst, Whether the claimant was married to the deceased (ss) ; and, secondlij, In what lands and annualrents he died last vested and seised. The brieve does not require pro- clamation, but the forms are in other res])ects similar to those employed in services of heirs ; (see Entry of Heirs.) The first head of inquiry is substantiated by evidence that the widow and the deceased were habit and repute married persons ; and the second, by production of the sasine of the deceased, or an extract of it from the register. (2.) The widow may afterwards obtain an allotment of a particular jiortion of the lands (ft), by means of a prucess called kenning, which pro- 408 ^""''•"^ \ 302. TERCE. SS"rS Succession. ) I Contract. ceeds before the Sheriff; but until served and kenned, she has no active title to the rents, or to remove tenants, or defend them against adjudging creditors of the heir (uu). This service and process are now almost obsolete. The right of terce is of a nature so indefinite, as to be the source of vexatious disputes between the widow and the heir, which the great number of cases referred to under this head abundantly evince. When it happens that it is not renounced or excluded, the parties gene- rally find it convenient to adjust their differences extrajudicially. (fl) See 1681, c. 10, above, p. 403. (h) See Stair, 2. 6. 12, et seq. See 1491, c. 25; 1535, c. 15; Bell, 7th - Dec. 1827, 6 S. 221. (c) Ersk. 2. 9. 44, et seq. (d) Reg. Maj. I. 2. c. IG. (e) Craig, 2. 22. 8; Stair, 2. 6. 16. (/•) Ersk. 2. 9. 45. {(/) 1681, c. 10, above, p. 403. (/() See La. Craigleith, 25th Jan. 1681, M. 6450. (0 Stair, 2. 6. 17 ; Ersk. 2. 9. 51. (k) Crawford's Trustees, 20th Jan. 1802, M. 12,698. (/) Cumming, 10th Feb. 1756, M. 15,854, (m) Ersk. 2. 9. 48; Belschier, 30th June 1779, M. 15,863. («) Ersk. last refer. ; Mead, 24th Feb. 1796, M. 15,873. (o) Ersk. as in (m) ; Logan, 2Gth Jan. 1665, M. 15,842; Monticr, 29th June 1773, M. 15,859. See Moncreiff, 9th Feb. 1667, M. 14,844. (p) Ersk. as in (m) ; Bell's Com. 1. 59. See Belschier, as in (w). (r/) Bell's Princ. 1600. (r) See Wilson, 13th Feb. 1822, F. C. (a) Wallace, 28th June 1649, B. S. 1. 395; Eose, 26th Jan. 1790, M. 15,867; Park, 15th Nov. 1769, M. 15,855; Hailes, 2. 306. (0 Craig, 2. 22. 34; Stair, 2. 6. 16. et seq.; Ersk. 2. 9. 49; Glenbervie, March 1541, M. 15,835; Lamington, 14th Feb. 1628, M. 15,840; Dunferm- line, 13th Feb. 1628, M. 14,707 ; Nisbett, 24th Feb. 1835, 13 S. 517. (m) Ersk. last ref. ; M'Dougal, 3d July 1801, M. App. Terce, No. 2. But see Bartlett, 27th Nov. 1812, F. C. ; More's Notes on Stair, ccxvii. (v) Ersk. as in (0; D. of Roxburghe, 25th June 1818, F. C. (?/)) Ersk. as in (/). (a:) Lamington, 14th Feb. 1628, M. 8240, M. 15,840; Belschier, as in (w). (y) MoncrcifT, as in (o). (2) Craig, 2. 22. 34; Stair, 2. 6. 16 ; Ersk. 2. 9. 49; Bankton, 2. 6. 11 ; Mack. 2. 9. 43; Lothian, 10th June 1801, M. App. v. Anmmlrent, No. 2. (aa) 1681, c. 10, above, 403. Q)h) C. of Findlatcr, 8th Feb. 1814, F. C. {cc) Mowat, 9th Feb. 1697, M. 6395. \dd) Jankouska, 29th Nov. 1791, M. 6457 ; Ross, 20th Jan. 1797, M. 4631, as reversed on ap., M. App. ;•. Foreign, No. 5. Sec Belschier, as in (w). 400 »'-•^'^'^"f I 302. TERCU. piamagc Succession, i I Contract. (ee) Bell's Piinc. 1600; Carlyle, 9lh Feb. 1725, M. 15,851; M'Culloeli, 10th July 1788, M. 15,866. (ff) Bell's Princ. 1600 ; Ersk. 2. 9. 4G. ((/(/) Giljson, 24th Nov. 1795, M. 15,869. The ratio seems to have been, that as tercc is measured by the husband's sasine, it cannot be due where liie sasine expressly excludes it. ]Macgill, 1.3th June 1798, M. 15,451. (kh) Ersk. 2. 9. 46; Bell's Princ. 1600. Sec Stewart, 18th May 1792; M. 10,232. (n) Bclschier, as in (m). {kk) Bartlett, 21st Feb. 1811, and 27th Nov. 1812, F. C. ; More's Notes on Stair, ccxvi. (//) Sec Moncreiff, as in (o). (»m) Craig, 2. 22. 27 ; Stair, 2. 6. 16 ; Ersk. 2. 9. 46. (7in) Last refer. But see Carruthers, 29th Jan. 1706, M. 15,846 ; More's Notes on Stair, ccxvi. (oo) Rose, 26th Jan. 1790, M. App. v. Terce, No. 1. {pp) Bell, 8th Dec. 1825, 4 S. 286. Iqq^ Ersk. 2. 9. 47. (rr) Victoria &c. Yicecomiti &c. Salutem Mandamus vobis et praeci- pimus quatonus dilecta; uostrtc B., i-clictoc quondam A. latrici prsesentium haberi faciatis rationabilem tertiam partem suam ipsara do omniuus et singulis terris et annuis reditibus cum pertinen. quae et qui fuerunt dieti quondam A. sui mariti haereditarie infra baliam vestram quas et quos de nobis tenuit in capite et de quibus obiit ultimo vestitus et sasitus ut de feodo Tantum inde facien. quod pro vestro defectu amplius inde justam qua?rimouiam non audiamus Teste meipsa apud Edinburgum, &c. {ss) 1503, c. 77. («) Ersk. 2. 9. 50; Jurid. Styles, 1. 445. (mm) Barclay, 2d Feb. 1675, M. 15,844. See Maxwell, 18th March 1630, M. 15,842. 303. Courtesy (1.) This right is one of liferent in the husband of the whole heritage (conquest being excepted) in which the wife died vested and seised, including burgage sub- jects (fi). The conditions are, that a child shall have been born of the marriage who was heard to cry, and that the wife had no child existing of a former marriage who succeeds to her estate {h). (2.) Courtesy is affected by the same burdens as the terce, and in addition, with the anniuil interest of the per- sonal debts of the deceased, but subject to a reservation of a right of recourse on subjects not falling under the courtesy. (3.) The wife's sasine is the measure of the courtesy, and if not challenged in her lifetime, when errors might have been remedied, is effectual to suj)port the right of the husband (r). He enteis into possession without service, or, in other words. 410 I^cedsof > OAO ,,,,,, r,r^r^^v ( Maniage "K'*^ { 303. COURTESY, session. 3 Succession. ) ' * ( Contract. he continues the possession which he had as husband of the deceased. (a) Craig, 2. 22. 43; Stair, 2. 6. 19; Ersk. 2. 9. 54; Patcrson, 1st Feb. 1781, M. 3120; Primrose, 10th Dec. 1771, M. App. v. Courtesy, No. 1.; Knight, 26th July 1786, M. 8815. (h) Ersk. 2. 9. 52-3. (c) Hamilton, 15th June 1716, M. 3117. 304. Provision by annuity. — (1.) It is obvious from the nature of the legal rights of terce and courtesy, that it is in all cases highly convenient that they should be excluded. The simplest form of a conventional provision is that by liferent annuity constituted in favour either of the husband or wife, as the case may be, when an estate is brought into communion by the other spouse. The form of the necessary clause {a) is simple ; the fee is provided to the heirs-male of the marriage, and failing them, to the heirs whatsoever of the party to whom the lands belong, and the annuity is made a burden on the conveyance. The previous destination is thus not altered. (2.) A liferent annuity secured, or which the granter has bound himself to secure, over heritage, com- mencino- at the first term after the husband's death, as for the period preceding that term, has been held to expire as at the term immediately preceding the death of the annui- tant. It does not run de die in diem^ like the interest of money, in regard to which there is no question as to a debt, but to whom the debtor must account. Annuities being pay- able termly, the current annuity, which is only provisionally due, necessarily falls by the party predeceasing the term of payment, although it is without question competent for a hus- band to declare by proper v/ords of style, that the annuity shall be payable not only termly, but proportionally, in which case it will run to the day of the annuitant's death. The word proportionally or continually, is held to be controlled by the obligation to infeft, if it bear only termly (b). (a) And fukthee the said A. hereby binds and obliges himself and his heirs succeeding to him in the lands and estate above disponed and his successors whomsoever to make payment to the said B. his promised spouse in case she shall survive him yearly and each year during all the days of her life after his decease of a free liferent annuity of £. exempted from all burdens and de- 411 ccdsof > 3Q^ IIIOVISION BY ANNUITY. j Man-ia^c cccssion. ) i Contract. diictions whatsoever and that at two terms of the year AV'hitsunday and Martin- mas by e(|iial portions &c. — Then follows an obligation to infeft the wife in se- curity of the annuity and a clause of absolute warrandice. See Jurid. Styles, 1. 175. (6) Ersk. 2. 9. 66; Craig v. Colbrookc, 14th May 183j, F. C, 13 S. 756. Seo opinion of Lord Gillies. See E. of Dalhousie, 19th June 1789, M. 15,915. The clause in the case of Craig was in these terms : " A free yearly an- " nuity of L. 800 a-year without any deduction whatever during all the days of " her life in case she shall survive me at two terms of the year Whitsunday and " Martinmas by equal portions beginning the first term's payment being L.400 " sterling at the first of these terms which shall arrive next after my death for " the half year immediately preceding that term and so furth thereafter termly " and proportionally during her lifetime with a fifth part more than each term's *• payment of liquidate penalty for each term's failure in punctual payment there- *' of" (follows the obligation to ii'fft) " to infeft and seise the said B. in the " said free annuity of L.800 sterling yearly during her life in case she shall sur- " vive me to be ui)lifted and taken at the aforesaid two terms in the year "Whit- " Sunday and Rlartinmas by equal portions beginning the first term's uplifting " thereof being L.400 at the first of these terms which shall arrive after my " death for the half year immediately preceding and so furth termly thereafter " during her lifetime," &c. 305. Restriction of the annuity. — It may be cove- nanted between the parties that the wife's annuity shall be restricted in either of these events, the existence of children, or her entering into a second marriage. A restriction in the latter event is usual, since it is to be assumed that the widow- will receive a provision from the second husband ; but not so in the former. The necessary forms will be introduced after the conveyance of the annuity, and before the obligation to give infeftment to the wife («), which will refer to the re- striction. (o) See Jurid. Styles, I. 197-8. 306. Jointure house. — Where the husband is an exten- sive proprietor, it is usual to provide the wife in a jointure house, or a sum in place of it. The obligation to give in- feftment in a jointure house will be introduced after the war- randice of the annuity («). («) Jurid. Styles, 1. 201-2. 307. Conquest 1. What considered cmiqnest — A provi- sion of conquest in a marriage-settlement is introduced after 412 c • i 30/. CONQUEST. ] Contract Succession, i t i^onirati. the warrandice of the annuity, and it may be in addition to, or only in security of the principal provision (n). (1.) Where the conveyance defines the subjects intended to be given as conquest, it is limited by the definition. In the words of Lord Stair (b), clauses of conquest " are interpreted strictly " according to the tenor thereof; for sometimes they only " bear lands conquest, sometimes lands or annualrents, some- " times lands, annualrents or sums of money, and sometimes " also o-oods or gear." Thus an obligation to infeft a wife in conquest of lands and aimualrents, extends not to leases which do not require sasine for their completion ; but these fall under the term, heritages (e). Nor does conquest of all lands, annualrents, goods and gear, include bonds bearing date after the marriage, unless the wife shall prove that they were granted for sums or moveables acquired during the mar- riage {d). (2.) Conquest, when not defined, obtains its legal meaning, and includes all subjects, whether heritable or move- able, acquired by industry, economy, purchase or donation ; but not such as come by legal or provisional succession, (un- less succession be expressed,) or to which a title is obtained by accretion or otherwise so as to render absolute and com- plete what was formerly imperfect or defective {e). (3.) The death of the husband is the period at which conquest is to be computed, and accordingly a lease, of which the term of entry had not then arrived, forms no part of the tenant's con- quest (/). In marriage-contracts it is usually so provided : and in estimating the amount or value of the conquest, debts are deducted, e. g. where an estate is sold, and another pur- chased in its stead, credit is to be given for the price of the former (g). 2. Ejfect of a clause of conquest to the wfe — (1.) Con- quest provided to a wife in liferent, remains the property of, and under the power of the husband, unless that power be expressly renounced, and he may grant competent provisions to the chil- dren even of the heir of the marriage, if enough remain as a provision for the wife {h). (2.) Where, again, conquest is provided to the wife and her relations in fee, failing children of the marriage, the power remains with the husband to dis- pose of it not only fur onerous causes, but at his pleasure, 413 s^^elll 307. co.«ur,s.,.. l^^;;;^ e.f/. in providing- for a second wife, or the children of another marriage {i). 3. Effect of a clause of conquest to children (1 .) A pro. vision of conquest to children is usually conjoined with a simi- lar provision to the wife (h). It is interpreted differently in some particulars from a provision of a specific suhject. Thus the terras, heirs or bairns, import an equal right in all the chil- dren (I) ; but in other respects the rules above explained ap- ply ; (§ 295. 2.) (2.) A provision of conquest is not to be in- terpreted as if the fiither were under a specific oblio-ation to make every subject available that he happens to acquire dur- ing the marriage ; it has the effect only of restraining him from altering the destination by substituting strangers in the place of the children. Conquest is 7iomen universitatis. The chil- dren have a valid claim to the universitas, but to no particular subject ; and as the father may forbear to purchase, so, after purchasing, he may exercise every right of property, and alter or lessen the universitas at his pleasure, although he may not convey it to the prejudice of the children by any merely gratui- tous deed without rational cause or consideration. The father having the power of onerous or rational disposal, children have no Jus crediti, and of consequence the father is not subject to diligence. Rational disposal includes a power of distribution, although not of absolute exclusion (?//). 4. Practical rules — In preparing clauses of conquest, the conveyancer will thus have in view, the kind, the amount or extent, and the husband's /?ow«-5 of control. (1.) When it is intended to give the wife the liferent of the whole subjects legally embraced by the term conquest, a specification is su- perfluous. On the other hand, such as it is meant to exclude must be expressed ; and if acquisition by succession is contem- plated, the same rule applies. (2.) It is advisable so to frame the clause as to declare whether the wife is to liferent the con- quest in addition to, or only in so far as it may exceed, her other provisions. (3.) The fiither's powers of control, althouah considerable by law, are in the ordinary case expressly reser- ved to the fullest extent : he will otherwise be in some degree restricted in the disposal of property obtained mainlv bv his own industrv. 414 13eoil-; of > on>7 S Marriage Succiion. I 307. CONQUEST. \ c,„tract. («) Jurid. Styles, 1. 202. lb) Stair, 3. 5. 32. (c) La. Dunfermling, 12th March 1628, M. 3048; Duncan, 15th Feb. 1810, F. C. (d) Kobson, 15th July 1673, M. 3050. (e) Stair, 3. 5. 52; Ersk, 3. 8. 43; Bell's Princ. 1975; C. of Dunfermling, 12th March 1628, B. S. 1. 252; \Yauchope, 6th Feb. 1683, M. 3062; Rae, ' 23d Jan. 1810, F. C. (/) Duncan, as in (c ) Iff) Ersk. 3. 8. 43. (/() Robson, as in ( 309. rilOVISION OVER ENTAILED SUDJKCTS. ^ ^^*'!'"*;,'' jcessioii. S I t^ontraci. autliorisc provisions to the wife to be granted by way of locality, in other words, by infeftment in certain specified subjects local- led and set aside for her liferent use. These receive the name of locality lands ; (above, § 275.) This kind of provision is equally applicable to the case where the estate is held in fee- simple. The contract will contain an obligation to give infeft- ment to the wife in certain lands which are fully described, sul)- ject to payment of the public burdens due out of them, with clause of warrandice, assignation to therents, &c. and a precept of sasine. (1.) Where the estate is unentailed, the clause pro- vidino- the wife in a locality precedes the conveyance to the heir of the marriage, which will be made under burden of the liferent constituted in favour of the wife. (2.) If again the lands are entailed, and it is necessary, from the terms of the entail, or convenient from other causes, to restrict the value of the liferent locality to a fixed annuity, the wife may come imder an obligation to grant a tack of the locality lands to the heir of entail at a specified rent, under a provision, that if the rent is not regularly paid she may recur to the lands them- selves (c). When locality lands are set apart without due in- quiry into their value, power may be reserved to the wife of choosing other lands in their stead, and an obligation imposed on the husband to execute the necessary deeds for that pur- pose. (3.) An important distinction obtains in estimating a provision of so much of the free rent of the estate, and the value of lands over which a fixed annuity is to be secured. A provision of the former kind has reference to the rent of the year current at the period of the granter's death (r/), as that in which it is to take efiiict ; whereas, in a grant by in- feftment in locality lands in security of a fixed annuity, the rent of these lands at the date of the grant is the rule, unless the matter be expressly regulated by the terras of the entail, or when the provision has been granted vioriis coiisa, so that the husband or wife will thus benefit by a rise or suffer from a fall in the value of the locality lands (e). (4.) A widow having right to the profits of locality lands cannot suffer by a conventional arrangement of the terms of payment made by the heir with the tenants of those lands (/). 3. Under Lord Aberdeen s Act. — When the deed of 41G Doc.lsof I 309. PROVISION OVER ENTAILED SUBJECTS. 5 Jf ™gf biioc'C'ssioii. ) I Contract. entail docs not sanction sufficient provisions to a wife or hus- band, these may be secured either by means of a life insurance and a liferent infeftment in favour of trustees to the extent of the premium, or more effectually, by taking advantage of the provisions of the statute {[/). An. entailed proprietor is em- powered to provide his wife by infeftment in a liferent annuity of one third part of the free yearly rent or value of the estate, as at the death of the granter, after deducting the yearly amount of all provisions, interest of debts and provisions, and other burdens of what nature soever, affecting the estate or its yearly rents or proceeds. A wife may, on the other hand, infeft her husband in an annuity not exceeding one-half of the free rent ascertained in the same manner ; to be restricted to a third in the event of a pre-existing annuity to a husband secured over the estate. And when two liferent annuities to wives or husbands, granted under the statute, shall be sub- sisting at one and the same time, it is declared incompetent to grant a third liferent to take effect before one of the former liferents shall cease or expire ; but the power of granting a liferent may be exercised so as to increase a former liferent, or grant a new liferent to take effect upon the ceasing or ex- piration of any former or subsisting liferent, although the same may not take place in the lifetime of the person granting such prospective or increased liferent. In adapting the powers given by this statute to practice, it is expedient to quote the precise words of the clause authorising annuities to wives and husbands, and likewise to declare that the particular provision is granted and accepted, subject to the provisions of the sta- tute, and shall in no event exceed the amount thereby autho- rised (A). (a) Jurif], Styles, 1. 18.5-6. (&) Campbell, (jth Feb. 1821, F. C. (c) See Forms, Jurid. Styles, 1. 200-1. (d) Glencairn, 2fith Jan. 1804, noticed in Agnew, below. Campbell, 21st May 18.31, F. C, 9 S. 624. (e) Agnew, 12th Dec. 1810, F. C. (p. 161 of vol.) ; Malcolm, 21st Nov. 182.3, F. C, 2 S. 514. See above, § 275. (/) Chisholm or Goodon, 2d Dec. 1829, F. C, 8 S. 165. (f/) 5 Geo. IV. c. 87. (/() Jurid. Styles, 1, 188-90. 417 Deeds of > 3j(j .fENENDAS AND REDDENDO. piarriaRO buccession. ) ( Contract. 310. Tenendas and reddendo — In the form to which reference has been made (a), these clauses are not pro])er feudal clauses of the nature which their titles import, but a part of the alternative obligation to infeft, and they ought to be introduced in the proper place. A marriage-contract is a disposition, and not a feu or blench charter. (a) Sec Jurid. Styles, 1. 176-7. 311. Procuratory of resignation — This clause au- thorises resiofnation in favour of the heirs of the marriage and substitutes expressed in the destination, which is here repeated. \Mien it is expected that the husband or wife may succeed to an estate during the subsistence of the marriage, a clause (a) may be introduced at the end of the procuratory of resignation, binding the parent to convey it to the heir of the marriage, the second son, or otherwise as may accord with the agreement of parties. («) Jurid. Styles, 1. ISOj 312. Provisions to younger children (rr) 1. Terms descriptive of the children — (1.) The words, bairns^ bairns and children, or child and children, (above, § 295. 2.) include the whole issue, and consequently the heir of the marriage. When the heir is otherwise provided, the words, cxccptinc/, or other than the heir of the marriage, will therefore be em- ployed. A money provision to the heirs of the marriage, or in equivalent terms, secured over feudal subjects, belongs to the heir in heritage ; (above, § 295. 2.) ; and it is thought that the same rule will hold good in relation to a sum appointed to be so secured, but not actually invested. (2.) Daughters, or heirs-female, failing heirs-male, mean the immediate daugh- ters of the marriage, and do not comprehend the daughters of a son who predeceases the father (Z/). 2. Provision by burdening the heir Provisions to the younger children of the marriage, or the children of a second marriage, secured over feudal subjects, or imposed on the heir of the marriage, may be granted in various modes. The most usual is by providing a sum of money, which it is unne- cessary to declare an express burden on the estate destined 2 D 418 S?::!:'. \ S'^- moMS.ONS to CH.LDKEN. |»'«3 to the heir of the marriage, unless the father be divested of the fee. The obligation is equally onerous as the destination, and must be implemented by the heir if the moveable succession prove insufficient. The father has even the power of grant- ing rational provisions to younger children by bond, although not of increasing suitable provisions already constituted so as to affect the heir of the marriage (c), and, a fortiori, to provide sums to children of a second marriage by contract, which may be made good out of lands settled on the heirs of the first mar- riage (d). But when lands are conveyed to the heirs of a marriage in fee, leaving only a liferent or fiduciary fee in the father, the provisions to younger children must, in the same deed, be declared a debt against the heir of the marriage, or the estate. This may be done, either by a real lien in favour of a trustee for the younger children, or by imposing a per- sonal burden upon the heir. 3. B>/ an obligation to secure a sum of money — A provision may be declared in the form of an obligation to in- vest a sum on heritable security, and to take the rights to the spouses in liferent, and the children in fee ; and the terms of a bond, taken in implement of the clause, will, in duhio, be interpreted according to the legal import of the clause it- self (e). An obligation of this nature seems to be sufficiently implemented by investing the money in the purchase of lands, even although the rents should fall short of the ordinary in- terest of the sum provided (/). 4. Provision hy burdening the jointure of the wife — This form of provision must necessarily be limited to the life- time of the widow. It may be constituted by an obligation on the wife to pay a certain yearly sum to the children, or by restricting her liferent annuity in the event of children exist- innr of the marriage, and declaring that the excrescence shall belong to the children. A provision so constituted is not affectable by the husband's creditors {y). 5. A direct conveyance to the prejudice of the heir incom- petent But a father cannot provide for his younger children, or the children of a second marriage, by a direct conveyance to them of a portion of the subjects destined to the heir of the first marriage. The distinction is, that although he may bur- 419 .ockof 1 3J2_ I-KOVISIONS TO CHILDREN. j Mania«. L'cession. J ( Coutract. don the subjects by rational provisions wnich will be binding on the heir, he cannot deprive him of the ipsum corpus of the property, which would imply an alteration of the destina- tion (Ji). This rule is of much importance in practice with reference to the contract of a second marriage. 6. Constitution of jus crediti. — (1.) By the modes de- scribed in Art. 2. and 3, of providing sums of money to children nasciturl, they become, in the ordinary case, mere heirs of provision (z), and have a valid claim against the father's . free succession only, in family questions occurring after his death (Jt). (2.) To vest in the children a jus cre- diti as against the father, and in competition with his credi- tors, and so as to transmit a right to their own heirs in the event of their predeceasing the Either, they must be made proper creditors of the father, and not merely of his estate. This may be done by declaring the provision, whether conceived directly in their favour, or appointed to be in- vested for their behoof, to be payable at a term certain, or any other period which may arrive during the father's life- time, or to bear interest from such term or period (/), Thus, under an obligation to pay a sum of money to the heirs and bairns of the marriof/e, at their age of fifteen^ the chil- dren were held not to be heirs-substitute merely, but for- mal creditors for the sum in the contract {m). On the same principle, adjudication in security was allowed to pass upon a provision in favour of daughters, payable at their respec- tive marriages, if the same should happen in the father s life- time ; buty in case of his predecease, at their ages of eighteen years complete, or at the first term of Martinmas or JVliit- sunday aj^ter his death, either oj^ them last falling out (»). The same effect will be produced by providing a sum to the bairns and chddrni of the marriage at their respective ages of sixteen, ivith annualrent thereafer (o) ; or at the father's death, if their shares are declared to bear interest from the majority or marriage of each child, whichever of these events should first happen (p) ; or by an obligation to invest a sum^i^;' behoof oj' the xvife in liferent, and a child nominatim in fee ; or by re- stricting the father's right to a fiduciary fee {(j) ; or constitu- ting a trust for the use and behoof of the children (r). (3.) 2 I) 2 420 Deeds of I 3 j2. TROVISIONS TO CHILDREN. \ J,^'™^^ Succession, y ( Lontract. But the clearest indication of a purpose to constitute the pro- vision a debt against the father will fail in effect, if such purpose be controlled by the tenor of other clauses, or the amount of the provision and the term of payment be made contingent on an event, such as the succession of an heir of the marriage, which cannot by possibility occur until after the death of the father (s). (4.) As the test of the children being creditors, or mere heirs of provision, is thus the term at which principal or interest becomes due, it is plaudy of no moment that the father has given or procured heritable security for the amount, so long as the fee is in his person. Such security cannot alter the destination of the sum, or do more than preserve it for those who may have the prefer- able right (t) ; nor is the obligation on the father made broader by the prohibitory diligence of inhibition, which cannot pro- pel the term of payment (?<) ; but a right constituted in the person of a trustee will give a preference to the children according to the nature of the security, without regard to the term of payment, since by this means the father is divested of the fee, and it would seem that he himself may competently be made a trustee for this purpose (v). (5.) When the obli- gation is to invest a sum for behoof of the younger children, or give them infeftment in a particular subject de p7-(Esenti, or at a fixed period which may arrive during the lifetime of the father, their right of credit is not contingent on implement of the obligation, but is perfected by the obligation itself (?f?). (6.) In those cases where the children have a proper right of credit, it warrants diligence by inhibition or adjudication in security against the father {x) ; and when the obligation is to invest a sum on good security, or to give infeftment in a par- ticular subject, implement may be enforced by action or dili- gence, although not so as to force the father to dispose of effects which form the source of his livelihood (y). In compe- tition with creditors of the father, the right of credit founds a claim for an absolute or a pari passu ipreference, according to the nature of the security (z). 7. Substitution to the heirs of the children. — (1.) When a proper 7?/5 crediti is constituted, it appears superfluous to substitute the heirs of the children ; but if it is intended 431 Suii:: \ 3 1 2. ..UOV.S.ONS TO C„n,„„EN. I S3 that the provision shall belong to the heirs-general of pre deceasing children — an unusual destination — it must be so expressed. The claim of the children and their issue is favourable, but not that of their heirs whomsoever {aa). (2.) An implied substitution to the heirs of their bodies takes place even where the children have not, by the terms of the contract, a proper j«s crediti. Thus, under an obligation by the husband to invest a sum in heritable security, and to take the rights to liimsclf and his icife, and lomjest liver, in liferent, and to the child or children to he procreated betwixt them, in fie, terms which leave the fee with the father, the issue of a daughter predeceasing the father was held entitled to her share (bh). It is usual, however, specially to substitute the issue of predeceasing children. 8. Fatliers power of division. — A power to distribute among the children a money provision, secured, or appointed to be secured over feudal subjects, is usually reserved in ex- press terms, although it seems a part of the patria potestas, but not to the entire exclusion of any one child (cc). Where no apportionment has been made by the father, the division will be in equal shares ; and if the division is so provided, the power of apportionment is necessarily excluded. 9. Power in the children to transact. — A child of the marriage having a mere spes successionis, may transact with the father, and discharge his share of the provision. This rule maybe of much practical importance ; (above, § 299. 2.) (a) Ewing, 1st July 1747, M. 2308. (A) Jurid. Styles, 1. 177. (c) M'Ciilloch, 24th June 1763, B. S. 5. 895. See Dykes, 9th Feb. isll, F, C; Miller, 30th July 1822, S. (Ap.) 1. 308. (d) Ersk. 3. 8. 42. (e) I the said A. bind and oblige myself my heirs executors and successors to employ and invest the sum of £ upon land or other sufficient heritable security and to take the rights and securities thereof to myself and the said B. my intended spouse and longest liver of us two in liferent for our liferent use allenarly and to the child or children (other than the heir of the marrisige) to be procreated of the said intended marriage in fee ; whom failing to me the said A. and my own nearest heirs and assignees whomsoever. See Macdonald, 14th Jan. 1831, F. C. and 9 S. 2G9. (/) Forbes, 24th Nov. 17(iO, M. 2278. ( (Oonuaci. that of tlie year current at the time of the granter's death {d). Where provisions subsist in favour of the children of former proprietors, it is declared that no farther provisions shall be granted until some part of the three years' rent shall be set free ; but upon the extinction of the whole or any part of such subsisting provisions, the heir in possession is empowered to grant provisions to his children, or increase those already constituted. It follows that an entailed proprietor can in no event anticipate the period when the three years' rent, or part of it, shall be free ; the subject out of which to grant provisions must actually exist. (2.) It has been questioned if the power conferred by the statute can be exercised by means of a per- sonal bond or obligation in a marriage-contract, or only by means of heritable burdens on the estate. The form of the wife's provision is declared to be a liferent annuity by infeft- ment ; but the words of the act in respect to children, are *' bonds of provision or obligations, binding the succeeding " heirs of entail." Where bonds are granted under a power in a deed of entail, to burden and affect the lands and estate with sums of money for the suitable provision of younger children, it has been held that the power is effectually exer- cised by means of bonds narrating the power, and binding personally the granter and the heirs of tailzie, in conjunction with all his other heirs ( 3 J ^ ^APPOINTMENT OF TRUSTEES. j fj"'''^"" Succession, i ( Loiilract. (a) And lastly it is hereby pnovinED and declaued that execution shall pass hereon at the instance of (fiiends of the wifij or at the instance of any one or more of them or of any of their eldest sons or apparent heirs for imi)lcment of the provisions above written conceived in favour of the said B. and the issue of the said intended marriage. 318. Clause of registration — The registration autho- rised by this clause is general, in the books of Council and Session or others competent for preservation and execution. 319. Precept of sasine This clause is in the ordinary form, and refers to the destination, provisions and burdens expressed in the dispositive clause. 320. Infeftment (a). — The feudal effect of infeftment upon the contract of marriage depends upon the terms of the dispositive clause, and more particularly of the destination. (1.) As infeftment cannot be given separately to disponees whose names are not expressed in the warrant, it follows that a destination to heirs, or heh's of the marriage, is incapable of being made a real rigiit. This illustrates the principle which regulates destinations to spouses in conjunct fee and liferent, and to the heirs of the marriage in fee ; for if such heirs cannot be validly infeft, it is plain that they have no feudal right in the subjects contained in the conveyance, and the fee must therefore of necessity remain with the grantor, or be held in trust by one or other of the parents. It is essen- tial, however, that infeftment be given in the precise terms of the destination, in order to perfect a right either of absolute or fiduciary fee in the person of the parent. Thus, undt;r a conveyance to A. and B., spouses, in conjunct fee and liferent, for their liferent use allenarhj, and the heirs of the marriage in fee, the exclusion from the sasine of the heirs of the marriage feudalises the conveyance to the extent only of a bare life- rent in the parents. The same result would happen under a destination to A. in liferent, and to the heirs of his body in fee (h). ¥ov although it is held that a fiduciary fee in the one case, and in the other an absolute fee, is created in the person of the father, who, by the form of the clause, has a liferent only, it is to the whole clause and not to a part of it that the 428 J>^^^'^\<^^ I 320. INFEFTMENT. J ?^™^,' Succession. ) ( Contract. law, from the necessity of the case, has given that construc- tion. But although the restriction of the infeftment to a life- rent thus limits the feudal right, and, of consequence, leaves the disponer undivested of the fee, it by no means restricts the right under the contract. That right necessarily remains entire, but continues personal (c). (2.) Infeftment, on the other hand, to children named in a postnuptial contract, com- pletes the right. (3.) Infeftment is essential to secure the rights of the parties favoured, in competition with the creditors of the spouse to whom the subjects belong, or of a relation of either of the spouses who comes under a mere obligation to convey lands to them, or the heirs or children of the mar- riage. Thus, where a destination bears by A. to himself in liferent allenai'hj, and the heirs of his body in fee, and infeft- ment is taken in favour of the father in the liferent only, he is consequently undivested of the fee ; and on his insolvency, the heir of the marriage has a mere personal claim under the contract (cl). (a) Jurid. Styles, 1. 271. (b) Ersk. 2. 3. 48; Graliamc, 4th July 1759, M. 6931 ; Dundas, 23d Jan. 1823, 2 S. 145; Falconer, 20th Jan. 1825, F. C, 3 S. 455. (c) See Grahame, as in (i). ( 322. iNTRODUCTOUY REMARKS. K >Ml™.t Succession, ) ( bottlcmciu rived from the Civil law. " Trust, in the vulgar acccpta- " tion, (says Lord Stair,) (a) comprehends all jjcrsonal obli- " gations for paying, delivering or performing any thing where " the creditor hath no real right in security ;" " but trust, " properly so called, is the stating a right so far in the per- " son of the trustee, as it can hardly be recovered from him *' but by his faithfulness in following that which he knows to " be the true design of the truster." In another place he says {b), trust property is that which the law calls Jidel-coin- " missiim, where there is no reversion, bond, or j)romisc of re- " version ; yet the truster knows quid actum est, that it was " not a donation or gratuitous alienation ; but that the granter " did trust that the trustee would dispose of it as the truster " would require." Originally, therefore, the faith of the truster was implicit, the trustee being under no other than a moral obligation to perform the duty intrusted to him. In that state of the law, it was competent to prove the trust against the trustee " indirectly, by circumstances inferring the same," as " it were to small purpose to refer it to his oath ; for it is " presumed that he who would steal would swear" (r). But upon the recital, that " the intrusting of persons without any " declaration or back-bond of trust in writing from the per- " son intrusted are occasions of fraud, as well as of many pleas " and contentions," it was at length enacted (d), " that no " action of declai'ator of trust shall be sustained as to any " deed of trust made for hereaftc, except upon a declara- " tion or back-bond of trust, or unless the same be referred " to the oath of the party simpliciter" This was the first step in the progress of the trust-right towards its present shape ; and we find that the absolute disposition, qualified by back-bond, came, in consequence of this enactment, to be the common mode of constituting a trust. The next step was the modern trust-deed. (a) stair, 4. G. 2. lb) Stair, 4. 45. 21. (c) Last refer. (d) 1696, c. 25. 323. Trust as a feudal right. — The trust-disposition is 430 Deeds of 1 ^^^ ^^^^^ ^^ ^ FEUDAL RIGHT. j. f'""'^- , Succession, y I bcttlemeiit. a writ of extensive application in practice. The subject of trust-rights has become of much importance and of conside- rable intricacy, and is one which may claim separate and more extended consideration. It is in a feudal respect only that it falls within the scope of this work. The advantages of vest- ing heritable property in trustees in a variety of situations are great. The right, when feudally completed in the persons of the trustees, is absolute in one respect, that the subject and the radical title are effectually burdened with the trust-right, whilst at the same time the trustees are controlled by the con- ditions of the trust. Thus, it is common in practice for en- tailers, where the estate is incumbered, to execute a trust-deed in relation to, and as a qualification of the conveyance made by the deed of entail, which is thus burdened with the trust. And it is held that two sets of titles, one in the trustees in fee- simple, the other in the person of the institute or an heir of tailzie, under the fetters of the entail, are not feudally incon- sistent, — the former being essentially a burden on the right of the members of tailzie, which is suspended by its operation, but obtains full effect as soon as the purposes of the trust are fulfilled (a). Trust is likewise of advantage in this respect, that a number of distinct interests may thereby be created in a right which, in a feudal sense, is single. The estate, for example, may be held for behoof of existing parties in liferent, and of children unborn in fee ; or its price or value may be divisible among divers persons Vv^hose shares are payable at separate periods ; or it may be vested in trustees for the bene- fit of creditors. Parties in these situations have no direct title to the immediate subject of the trust, but a Jus crediti only, or right of action against the trustees : by these means the most complicated interests are put in train of adjustment with- out the delay and expense of separate judicial procedure, and the truster's representatives saved from the risk of incurring a universal liability for his debts by service or otherwise. It is not my intention to consider the several forms of trust-deeds ; the trust-disposition and settlement will serve as a type of the class. It usually consists of the following clauses : 21ic nar- rative ; the dispositive ; obligation to execute necessary deeds ; nomination of executors ; purposes of the trust ; p6wer of sale ; 431 Deedsof 1 ^^3. TRUST AS A FEUDAL RIGHT. J. J/""'^- Succession, y ( bettlemcnt. obligation to infcft ; procuratory of resignation ; assignation to icrits and rents ; nomination of tutors and curators ; potccrs of management ; reserved poiver to revoke; clause of registration ; precept of sasine, and testing clause. Those clauses only will be noticed which call for particular observation, as most inti- mately connected with the feudal right. Reference is made to the Style-book (h). (a) See Molvi!le, 8tli Feb. 1838, 16 D. 457. (h) Jurid. Styles, 1. 257. 324. Dispositive clause (a) — This part of the deed con- tains the nomination of the trustees, and a description of the subjects conveyed. This description is usually special, of a particular estate, and general, of all the truster's heritable and moveable property. With respect to the trustees, the follow- ing particulars deserve the attention of the conveyancer : 1. Who capable of being trustees? — (1.) It may be ob- served, generally, that any person of twenty-one years of age, not under legal incapacity by having been declared infamous or by outlawry, and who enjoys the confidence of the truster, may hold the office of trustee. Mere absence abroad does not create even a temporary incapacity, unless it is so declared {b). (2.) It has been doubted if the nomination of a female do not fall by her marriage. If appointed in a mortis causa deed, whose eflect is necessarily suspended till the grantor's decease, her intermediate marriage does not vacate the appointment ; but an opinion has been expressed that the consent of the hus- band is essential to the validity of the wife's acceptance of the trust (c). In more recent cases, it seems to have been assu- med that an appointment which has taken effect docs not fall by marriage, but that the concurrence of the husband is required to validate the acts of the wife (d). (3.) Bankruptcy has, in one instance, been held to vacate the office of trus- teeship ((?) ; but the decision is not regarded as amounting to a declaration of absolute incapacity (f) ; and it may be advisable, therefore, to introduce a qualifying provision, that bankruptcy shall void the appointment. (4 .) Nor does insanity, which may be only temporary, seem necessarily to vacate the office (//). 2. Number — Terms of appointment (1.) There is no 432 S^Zt°l.\ 324. DISPOSITIVE CLAUSE. UJZlt. liniit to the number of the trustees except in the will of the truster. A sole trustee is perhaps most efficient in trusts for a single and immediate object; e.f/. the sale of lands and division of the price among creditors ; the purchase of lands to be subjected to the fetters of an entail ; or the discharge of an entailer's debts. But where the management must be of long continuance, or large discretionary powers are conferred, as in family settlements, it is advisable to appoint a plurality of trustees. (2.) If the nomination is not sole, the terms of the appointment must be carefully expressed. A nomination joint in express words, necessarily imports a trust in the whole ; and even where it is not so expressed, the presump- tion seems to be that the nomination is joint {h). The result is, that if one of any number of joint trustees should die or be denuded, or become incapable, the trust is at an end ; and the like happens when a certain specified number, appointed a quorum, which is a joint body, does not accept or is not maintained (i) ; or if any one trustee who has been appointed a sine quo non, — an essential component part of the quorum, — shall vacate his trusteeship. It follows that the number in- vested with the powers of the trust, whether the trustees as a body, or their quorum, must concur in every act of ad- ministration (/c). From these rules has arisen the practice of investing the accepting and surviving trustees, or the major part of them, with the powers of the trust, which thus subsists so long as any one or more of those who have charged them- selves with the trust are alive, and not denuded of the office (/). (3.) When the trust is evacuated by death or other- wise, or suspended by refusal to accept, or by absence in cases where residence within the kingdom is required, the rule seems to be, that if mere acts of administration are to be per- formed in order to the protection of the trust-property for the party having a beneficial interest, the Court will appoint a judi- cial factor to manage it (m) ; but that they will exercise their nohile officuim in the nomination of trustees or managers in those trusts only which are created by statute or constituted for cha- ritable purposes, and where no party has any direct or imme- diate interest in the management ; at least, that, in the ordi- nary case, the concurrence of all parties interested is a desi- 433 Deeds of I 324_ iHSFOSITIVi: CLAUSE. 1 Salomon t Succession. ) I amicmcni. rable, altliougli not a necessary preliniinary to the appoint- ment of trustees by the Court («). (4.) Trusts, with extensive discretionary powers of disposal or distribution, imply a dUectns persoiKB, and fall by refusal to accept {o) ; provision ought therefore, in such cases, to be made, to prevent the convey- ance from being inoperative. It might, in all cases, be advi- sable to sanction the appointment of trustees by judicial autho- rity, in the event of the death or incapacity of those named in the deed, without having devolved the trust upon others. 3. Acce])tance. — (1.) It is usual for trustees to declare their acceptance in express terras, by a minute subjoined to the deed ; but acceptance will be inferred from facts and cir- cumstances, e. g. by a person duly nominated a trustee per- mitting his name to be used judicially, or in correspondence on the subject of the trust (/?). (2.) A party who has accepted of the trust cannot capriciously refuse to concur in neces- sary acts of administration, if his concurrence is essential. A trustee is held to accept, under an implied condition that he shall carry through the trust ; and he will not be per- mitted to resign without due cause when a quorum would not remain, but may be compelled to adhibit his subscription to necessary documents ((/). Accordingly, where a trustee, by refusing to join in executing a discharge, occasioned a loss of interest to the trust-estate, the Court held him personally liable in the amount of the loss, and in the expenses occasioned by his contumacy (/•). (3.) Even where the name of a party is introduced in feudal titles as a trustee, without his con- sent, he will not be permitted to embarrass the management by a refusal to perform the necessary act of denuding of the right. He must execute the deeds proper for that purpose, on being relieved of expenses and all responsibility (.v). Another remedy is by declarator and reduction of the title. 4. Poicer to delegate ( 1 .) By the form in the notes (^), power is given to the accepting and surviving trustees or trus- tee to appoint new trustees, the choice of whom is sometimes given to a party interested in the trust {u). The power may be conferred either without limitation as to numbers, or to the extent only of tilling up vacancies by death, resignation or incapacity [v]. (2.)[ A fiiculty of this description cannot be 2 E 434 Deeds of > 334, DISPOSITIVE CLAUSE. } „ J'""'^- , Succession. } ( Settlement. exercised even by the whole body of tlic trustees, without ex- press authority in the deed; and when the power is given, it can only belong to the whole trustees, or their legal quorum, if a quorum be authorised (lo). (3.) This power is highly conve- nient in practice, and may be exercised even on deathbed (j,) ; but the new trustees are not vested with the feudal right, by infeftment in general terms, as in the dispositive clause, joined to a simple nomination as such. The subject of the trust must be conveyed to them nominatim. 5. Remuneration Trustees appear to have no legal claim for remuneration, even trustees for creditors (j/). In family settlements it will be expressed, when it is not expected that the trustees will act gratuitously. (a) Give grant and dispone to and in favour of B. C. and D. and to the survivors and survivor of them who shall accept and the heirs of the survivor the major part of those accepting and surviving and resident in Scotland (or Great Britain) for the time being always a quorum for executing the purposes of this trust All and whole (the subjects) As also all other lands &c. but in THUST always for the ends uses and purposes herein-after mentioned. (b) Heriot's Trs. 8th March 1836, F. C, 14 D. 670. (c) Stoddart, 30th June 1812, F. C. (f/) See Watson or Darling, 14th Jan. 1824, 2 S. 607 ; affirmed, 11th May 1825, 1 W. S. 188; Alison or Laird, 16th Nov. 1833, F. C, 12 S. 54. (e) Macdowall, 20th Nov. 1789, M. 7453. See Smith, 15th May 1832, 10 S. 531. (/) See Bell's Com. 1 . 32, note ; Morland or Cowan, 20th Jan. 1837, F. C, 15 D. 398. ((,) Frascr, 1st March 1837, F. C, 15 D. 692. (/i) Bell's Princ. 1993. (0 Freen, 28th June 1832, F. C, 10 S. 727 ; Ferrie, 31st May 1834, 12 S. 672. (k) See Heriot's Trs. as in (b). (Z) Campbell, 26th June 1752, M 7440, (m) Bushy, 1st Feb. 1823, 2 S. 176; Alexander, 27th Feb. 1824, 2 S. 745; Boyd or Sherriffs, 24th Jan. 1829, F. C, 7 S. 314; Smith, 15th May 1832, 10 S. 531 ; Ireland, 18th May 1833, 11 S. 626; Nisbet, 3Ist Jan. 1835, F. C, 13 S. 384; Morland or Cowan, as in (/). See Frascr, as in (g) ; Lacy, 7th July 1836, 14 D. 1112. (n) See Macdowall, as in (e) ; Melville, 8th Feb. 1838, 16 D. 457. (o) Campbell, as in (/) ; Dick, 22d Jan. 1758, M. 7446. (p) Davidson, 9th July 1835, F. C, 13 S. 1082. (9) Lyncdoch, 15th Feb. 1827, F. C, 5 S. 358; affirmed, 4 W. S. 148. (r) Lyncdoch, 20 Nov. 1832, F. C, 11 S. 60. (s) Dallas, 21st Nov. 1710, M. 16,191. (<) "With power to the survivors and survivor of my said trustees (whether on 435 Deeds of > Succession. J «-,..,... v.o. . x .. v,.-.v. o... ^ Settlement. 324. DISPOSITIVE CLAUSE. K "^ '""'**■ I Settlemc accountof thedeathrcsignation legal incapacity or continued absence from Scotland of the other trustees) to nominate and appoint one or more persons from time to time to fill the vacancies in the number of my said trustees and to act along with them or him in the execution of the present trust with the same jjowers and as fully and freely in all respects as if the said persons were herein expressly named as trustees, and if necessary to execute all deeds proper for vesting in the per- son or persons so to be assumed the feudal right of the subjects above disponed. (u) See Baillic, lllh March 1835, 1.3 S. «8I. (y) See Jackson or Ferric, as in (/). (w) Frecn, as in (i). See Hunter, 7th Feb. 1834, F. C , 12 S. 406 ; David- son, 9th July 183.5, 13 S. 1082. (.r) Roughhead, 5th March 1832, 11 S. 516. (y) Johnston's Trs. 4th Jan. 1738, M. 13,407. 325. Purposes of the trust — 1. Form andinterpretation. — (1.) The directions given by the truster for the application or disposal of the trust-estate are usually expressed in the deed, but this is not essential to their efficacy. An heritable estate may be vested in trustees by a conveyance in trust and infeft- ment on it, subject to purposes and directions contained in another deed already in existence, or provisionally created by reference to a deed to be afterwards executed ; and such deed may be in the form of a will, and executed according to the law of the place in which the truster is domiciled [a). (2.) The purposes of the trust in a family settlement are usually for the sale and division of the trust-property among the rela- tions of the truster, for the conveyance of an estate to a par- ticular series of heirs, or the investment of fimds on security, and they ought to be fulfilled without unnecessary delay. Where trustees appointed to invest funds in heritable secu- rity or the purchase of stock declined, on the requisition of those interested, to carry the purposes of the trust into eflect, they w^ere held liable for the loss sustained by the parties in consequence of the delay (Z»). (3.) The purposes of the trust are interpreted according to the fair meaning of the terms (c). 2. Reversionaru interest. — (1.) The ultimate purpose of a trust-deed may be to convey what remains of the subjects, after accomplishing the other objects of the truster, to a par- ticular individual. If not specially provided to another, this reversionary right or interest is in the heir-at-law {d). (2.) The right of reversion of lands not sold by the trustees continues on the former investiture, unless the reversion be conveved to 2 E 2 43G Deeds of J 355^ PURrOSES OF THE TRUST. ] ^ j^,'"^'- , Succession. 3 ^ Settlement. another ; the radical rio-ht remains in the truster, who is not denuded hy the infeftment of the trustees. Trust is thus a mere burden upon the radical right, and it is extinguished as soon as its purposes are fulfilled, in like manner as is a heri- table debt by intromission. It has accordingly been held that the truster may validly entail the subjects of the trust, and that infeftment on the entail vests in the disponee such part of them as may remain after the trust is executed, without re- signation ad rcmanentiarn by the trustees (e). It follows that adjudication of the reversionary interest is effectual (f). (3.) The advances and obligations of the trustees form a pre- ferable burden on the trust-subjects, and they cannot be com- pelled to denude until relieved of them (ff). Trustees have even been allowed a preference over the price of lands con- veyed to them by a trust-deed under which they had acted bona Jide, but which was reduced at the heir's instance as an invalid conveyance, and that in competition with creditors of the heir holding real rights over the property {h). (a) Willoch, 14th Dec. 1769, M. 5539; affirmed, 30th March 1772; For- dyee, 5th July 1827, 5 S. 897; Brack, 23d Nov. 1827, 6 S. 113; affirmed, 5 W. S. 61 ; Cameron, 19th May 1831, F. C, 9 S. 601. (i) Morison, 9th Feb. 1827, F. C, 5 S. 322. (c) Sprott, 22d May 1828, F. C, 6 S. 833. (d) Cathcart, 26th May 1830, F. C, 8 S. 803. (e) Macmillan, 4th March 1831, F. C, 9 S. 551 ; affirmed, 14th August 1834. (/) Campbell, 14th Jan. 1801, M. App. Jdjud. No. 11. (c/) Innes, 18th Dec. 1828, 7 S. 206. (/i) Campbell, 21st Nov. 1837, Scot. Jurist, 10. 190. 326. Powers of the trustees These, in a feudal sense, relate merely to the conveyance of the estate to the purchaser, or under the directions of the truster («). (1.) A ])ower to sell, when intended to be given, ought in all cases to be express- ed. Although not expressed, it may be inferred from the various clauses and general purposes of the trust-deed, but the question is one of difficulty (b). (2.) A power of sale falls short in its effect of a direction to sell. The former is a mere commission ; the latter changes the nature of the right from heritable to moveable (c) ; so that the/?/.? crediti of a party entitled to a share of the price descends to his executors. 437 Deodsof J .^2G. POWKUS OF THK TUUSTEES. J SeUlement (3.) In sellina- property, trustees are entitled to exercise a sound discretion in disposing of it to the best advantage, and they may delegate their powers to a factor or commissioner (d). As exposers, they are debarred from purchasing the trust- subjects; (above, § 109.) (4.) A direction to convey is con- strued according to the plain meaning of the terms. Thus, a direction to entail lands on a series of heirs, (being tlie children of the entailer all expressly named,) and the heirs of their bodies in their order^ was held to be exclusive of heirs- portioncrs, the nature of whose right is inconsistent with the permanent existence of a strict entail ( ( i^miy. to be afterwards explained, includes a general service, ijtis- dcm generis, m the same character. (a) Craig, 2. 12. 24; 2. 17. 22. See Sandford on Succession, 1. 272. (6) Ersk. 3. 8. 71. (c) Karnes' Elucid. Art. 15. (d) Ersk. 3. 8. 65. (e) Additional Sutherland case, c. 1. p. 6 ; Rctour of the Daughters of Duff- gallus, on a brieve of Alexander III. in 1271. Sec opinion of Lord Medwyn in Cochrane, 11th March 1828, F. C, 6 S. 751. (/) Kanics' Elucid. Art. 13. {g) Ersk. 3. 8. 65. (/i) Stair, 3. 5. 25 ; Bankton, 3. 5. 21. TITLE II. SPECIAL SERVICE. 332. When necessary — (1.) Special service is necessary in all cases where the fee in a Crown-holding is in hareditate jacente of the last fiar, or the superior, when a subject, refuses to "-rant a precept of dare constat in favour of the heir. It is applicable to all rights duly feudalised, whether absolute or redeemable ; for although the heir of the creditor in a real lien, which is a right not constituted by infcftment in the person of the creditor, but forming a burden on the infeft- ment of the debtor, may validly discharge the burden after serving in general, the rule is different with respect to proper rights of annualrent, or other securities by infeftraeut (a). The party competent to serve is the heir-at-law or of provi- sion ; and he must adopt the form of service, unless where the ancestor has made a direct conveyance in his favour. A conveyance to a stranger, even with feudal clauses, has not the effect to prevent the heir-at-law from serving in special to the deceased (b), although the superior is under no obligation to grant precepts in his favour; (above, § 148. 4.) (2.) It follows that, when the fee is full, service in special is in- competent. Where, accordingly, infcftment has been already obtained in virtue of a service however erroneous, if in the proper character, or the fee has been taken up by means of an infcftment ex facie formal and made public by confirmation, the righteous heir is e.\.cluded from serving^ in special, until he shall have reduced the invalid title standing in the person 446 ^,f.y «n 332. WHEN NECESSARY. } ^^ Heirs. ) t o«rvice. of his competitor (c). But infeftment on a precept of dare constat not authorised by service, and therefore warranted by a mere arbitrary act of the superior, or on a conveyance a non domino, is insufficient to exclude service in special {d). (a) Ersk. 3. 8. 63; Halkerston, Jan. 1729, M. 14,436 and 1799; Cuthbert- son, 7th March 1806, M. App. v. Service and Confirm. No. 2. (h) Suttie, 20th July 1733, M. 14,457; Douglas, 25th Nov. 1761, M. 14,457. See Colquhoun, 16th Dee. 1828, F. C, 7 S. 200 ; remitted, 6 W. S. 32 ; ad- hered to, 8th July 1831, F. C, 9 S. 911. (c) Cuninghams, 27th Feb. 1812, F. C. (rf) See Maccallum, 21st Feb. 1793, M. 16,135; Lord Moncreiff in Ruther- furd, 12th Nov. 1830, F. C, 9 S. 3. 333. Particular cases In the ordinary case of a fee- simple, or of a destination or entail duly feudalised, it is sel- dom that any difficulty can occur in judging of the necessity of a service in special. But when lands are held under a destination in fee and liferent, the question becomes more complicated. Case 1 A conveyance to A. in liferent, and to B. in fee, vests the fee in B. The liferent expires on A.'s death, and nothing remains in his licRreditas jacens to be taken up by service and new infeftment. (1.) The question may, however, occur on the words of a destination, what terms im- port a liferent ? Lord Stair is of opinion that a conveyance to A., and after Ms decease, to B. and his heirs, imports a bare liferent in A. Dirleton and Stewart (a) dissent from this opinion, and the interpretation has been rejected by the Court. Thus, under a destination to A., and failing him by decease, to B., Sfc. the fee was held to be in A. (b). (2.) A liferent, where a fiar is named, does not become a feudal fee by the resei*vation of powers of disposal in favour of the liferentcr. These fly off on his death ; but a matrimonial fee in the husband with reserved powers, even where there is a proper nominatim fiar, becomes, by the reservation, a feudal fee in his person, which, on his death, must be taken up by special service. These powers attach to the fee, and give the substantial right of property to the husband (c). Case 2 (1.) Where the destination is to A. in life- rent, and to the heirs of his body in fee, and is followed by 447 ^uZ:'\ 333. rAUTict-LM. CASES. S|i«S. infeftment in these terms, made public by confirmation, the fee, according to a rule above explained, (§ 295. 1,) is vested in A. ; and it seems to follow, that on his death, the heir of his body must take up the succession by service to him as heir of provision, the granter having been divested by the infeftment. (2.) If the fee in the parent is made fiduciary by the use of the taxative term allenarly, or an equivalent term, the right in a feudal sense is the same. It is true that the parent holds the ])roperty as trustee for his heir ; but the fee is not a proper trust-fee burdened with the conditions of the trust, w'hich is personal to the individuals named, and does not descend to the heir of a trustee without an express substitution. Here, the sole interest is in the heir, and it seems no great stretch of construction to regard him as a proper substitute of the fiduciary tiar. It is therefore thought that the fee may be taken up by special service as heir of provision to the fiduciary fiar, and that the form of a declara- tory adjudication is inapplicable to the circumstances {d). Case 3 In destinations with substitutions, when the institute is infeft, the next substitute will take by service as heir of provision in special. Infeftment given during the lifetime of the institute to one whose true character is that of substitute, vests nothing in him, and cannot therefore super- sede the necessity of service. The law recognises a joint fee in several proprietors pi-o indiciso, each having right to a share of the common subject ; but not a successive fee in two or more dlsponces in their order, each having right to the whole by one and the same infeftment (e). (a) Dirleton and Stewart, voce Heirs of Prov. and Siibst. lb) Hamilton, 10th June 1714, and 21st Jan. 1715, M. 14,3()0-2. (c) Wilson, 14th Dec. 1819, F. C. See opinion of Lovil Gleiilec. (rf) See Dunda.s, 23d Jan. 1823, 2 S. 145 ; Frog, 25th Xov. 1735, M. 42C2. (e) Livingston, 3d March 17G3, M. 15,400; Ker, 12th Feb. 1708, M. 14,357 ; M'Ciilloch, 10th July 1731, M. 14,366. TITLE III. GENERAL SERVICE. 334. When necessary (I.) As the special service is the first step in taking the feudal right out of the hareditas jaccns of the ancestor, so is the general service a preliminary in com- 448 ^"*7 "*■ J 334. WHEN NECESSARY. } J^""'""' Heirs. 3 I Service. pleting a title in rights which were vested in one deceased, such as reversions, servitudes, &c. which require no sasine, real liens, which burden the infeftment of the debtor, or per- sonal rights, which, although requiring sasine for their com- pletion, had not been perfected by sasine in the person of the ancestor — as heritable bonds, dispositions, adjudications not feudalised, even although followed by a charge against the su- perior, &c. and consequently procuratories of resignation and precepts of sasine still unexecuted (a), as well as precepts a me, followed by infeftments unconfirmed by the superior (b). (2.) The party must be a proper heir, whether of law or of provision, and not a disponee or institute ; and even in a proper condi- tional institution, the disponee takes without service. To enable an heir of provision to take by service, the deed must contain effectual words of conveyance. Thus, a destination in favour of A. and his heirs-male, followed by a declaration, that after their failure, B. and his heirs-male should succeed, would be inoperative as to B. and his heirs, the words of conveyance being awanting ; at least a service would not be competent to B. or his heir, although he might probably be entitled to recover on a decree of constitution, or by declarator and adjudication in implement against the next heir under the existing inves- titure. (3.) Service, in general, is indispensable in order to put the heir in the place of the ancestor, and thus enable him to exhaust the unexecuted feudal clauses of deeds of convey- ance, by inserting his own name in the charters and infeft- ments following upon them. It cannot be superseded by a precept from the superior, who has no power to discharge the procuratory or precept of the ancestor. The test of the competency of special service being the vesting of the sub- stantial right of fee, so that of the necessity of general ser- vice is the position of the personal right. The rule is, that the heir must serve to the ancestor in whom the personal right was last vested, either by a nominatim conveyance, or by general service to his ancestor. This rule and its exceptions are explained by the following cases. (a) Sec 1C9.3, c. 3.5, above, p. 100; Ersk. 2. 12. .31 ; 3. 8. G3 ; Cudibert- son, 7th March IROfi, M. A))!). Sen. and Conf. No. 2. (Jb) Douglas, 10th July 1713, M. 3008. 4-10 >^;;7„°'} 335. ..Aur,ctL..R CASES. !«;-;;?. 335. Particular cases. — Case 1. — (1.) The simplest form of service is by the heir of line of the grantee in the ordinary disposition of sale who had died without executing- the feudal clauses in the deed. But let it be supposed that the conveyance was by A. to B., xchom failing, to C. ; or by A. to Jwnself, vlioiii failiiKj, to B. ; or by A. to Itimself and the heirs- male of his body, xvhom failing, to B. ; B. is thus the heir of provision in place of the heir of line. In either case the per- sonal right must be taken up by general service (a). (2.) The terras of the destination being the same, viz. to A., {or to A. and the heirs of his body,) ichom failing, to B., and it beiner assumed that A. predeceased the grantor, (and without leaving issue, if his heirs have been included,) B. will still serve as heir of provision in general to A., provided the con- veyance was perfected by delivery before the death of A. Case 2. — But take the case of a destination in a mortis causa disposition bij A. in favour of the heirs of his bodij, idiom failing, to B., ^-c. that the granter survives the heirs of his body, and that B. survives the granter. It is obvious that a conveyance in these terms could not have been feudalised even during the lifetime of the granter, because infeftment to heirs unnamed or unborn is inept ; nor is the difficulty removed by the failure of heirs of A.'s body. For although the personal rifht vests in the nominatim substitute B., an obstacle of a practical nature exists under the terms of the statute which regulates the mode of executing feudal clauses after the death of the granter {b). That statute prescribes, that " the titles " of those in whose favours the resignation is made, and to " whom the sasine is granted, be deduced " in the instruments of resignation or sasines, under the sanction of nullity. But as the notary has no warrant for stating in the instrument that the heirs of the grantor's body have fiiiled, he cannot deduce in it the title of the nominatim substitute (c). Consequently the fact of the non-existence of heirs of A.'s body must be established by some mode of investigation, but whether by means of general service or an action of declarator, or indif- ferently by either, has not yet been conclusively determined. In an early case, service in general to the grantor was in similar circumstances sustained {d) ; but doubts have been 2 V 450 Entry of ? o o t ^ General Heirs. \ 335. PARTICULAR CASES. \sev.ice. entertained of the soundness of the decision (e). In such cir- cumstances the proceeding (whether by service or action) is plainly of a declaratory nature : it cannot transmit a right, because none remained in the person of the granter ; and as a proper service it would be inept and ineffectual (f). Case 3. — The same necessity for a declaratory proceed- ing obviously exists where the destination is to A., ivhom fail- hif)^ to B.^ and A. predeceases the granter without having ob- tained delivery of the disposition. The predecease of A. can- not be assumed by the notary, nor can B. serve in general to A., in whom no right had vested. Case 4. — (1.) The case assumed in Art. 3. may be much complicated by the introduction into the destination of the heirs of the substitutes. Thus, under a conveyance to A. and the heirs of his body, ichom failing, to B. and the heirs of his body, &c. the granter having survived A. and his heirs, but predeceased B., who neglected to complete a title under the deed, the question arose, in what form C, the heir of B., behoved to make up his title. Here the right vested in B. on the grantor's death ; but the same obstacle which has been noticed in Case 3. would have barred infeftment in his favour without service or declarator, and the difficulty was necessarily increased in the person of his heir. The mode deemed com- petent in these circumstances, by the majority of the Court, (although the form of the case did not admit of a determina- tion of the question,) was by declarator at the instance of C, that B. was disponee in the destination by the predecease of A. and the heirs of his body, followed by the service in general of C. to B., as the substitute last vested with the per- sonal right. Service directly to the granter was rendered incompetent by the vesting of the personal right in B. (2.) The same form of proceeding will obviously apply to the case of a destination by A. to the heirs of his body, wliom failing, to B., when the heir of A.'s body survives the granter, but dies without having made up a title. Under the opinion of the Court, B. will establish by declarator that the right vested in the heir of A., and afterwards expede a service to him as heir of provision in general (g). Case 5 Let it be supposed that the circumstances stated in Art. 5. are still farther varied ; that none of the •451 ^"'7 «<■{ 335. PAKTICULAIl CASES. \ I'"^"^"' Heirs. J ( Service. persons called by name to the succession survived the entailer, but that the substitute in rifjlit on his death, is an heir called under the general designation of heir-male of the institute. In a recent instance, this heir-male carried through a gene- ral service to the institute, (who had predeceased the granter without, as it appeared, receiving delivery of the conveyance,) and thereupon brought an action of declarator to have it found, that in virtue of his service he had the only good and etlectual title to be infeft in the lands ; or otherioise, that by the predecease of the institute and a preceding substitute, he, the heir-male, might take up the succession either as condi- tional institute or disponee, or as heir of tailzie and provision to the entailer, and expede a service in this latter character. The Court declined to advise the heir-male in regard to the correct mode of completing his title ; but on the summons beinsf restricted to the first set of conclusions, to which no objection was stated by the substitutes in the destination, the Court found, in conformity with these, that he was entitled to infeftment under the service which he had already expede to the institute (A). These several instances plainly, there- fore, depend on the same principle, and only differ in the greater or less complexity of the terms of the destination. It is difficult, or rather impossible to deduce from them any practical rule for the guidance of the conveyancer. The safest course manifestly is to follow the procedure suggested in the case of Colquhoun, as closely as circumstances will permit. Case G. — Another example of a declaratory proceeding occurs in the case of a conveyance to heirs nascitiiri. Put the case of a settlement on tlie heirs of the hodi/ of the (/ranter. The feudal incompetency of giving infeftment to a person unnamed renders certain steps necessary in order to identify the party who has right under the conveyance (/). In prac- tice, it is not unusual to complete the title of the granter's heir by service (h), and it can seldom occur that a party exists who has an interest to question the formality of the proceed- ino". But it is by no means clear that service is the compe- tent course. The heir of the granter's body is such only de~ sif/native ; in a feudal sense he is a disponee. The case differs 2 r 2 452 ^nSs!' \ 33^- I'ARTICULAR CASES. { ^^^t in form, but apparently not in principle, from that of the nominatim substitute in a destination by A. to the heirs of his hodi/, ivhom failing, to B. This shape of the clause is noticed in Art. 2. of the present section, and under it, a service at B.'s instance to the granter might be unsafe, after the opinion of the majority of the Court in the case of Colquhoun. In both instances the granter is divested. The case under con- sideration affords less ground than even that of Gordon of Carleton, for maintaining that service is a competent form. The service in the case of Gordon was sustained as equiva- lent to a declaratory finding that the intermediate members of the destination had predeceased the granter ; but here there is no question as to the heir entitled to take ; he is the im- mediate issue of the body. The point may perhaps be con- sidered as settled, and that the proper course of proceeding is by adjudication in implement or declarator (/). Case 7 Service is unnecessary at the instance of a proper conditional institute ; (above, § 245. 2.) Thus, under a conveyance by A., failing heirs of his oxen body, to J5., the heirs of A. have their right reserved, and not conveyed. B. is a disponee under a condition, and that condition being puri- fied, he may take immediate infeftment under the conveyance. Case 8 Heirs or children of a marriage having jms crediti — a right to enforce an obligation in the contract to in- vest money or execute a conveyance of lands, or to challenge deeds in frandem of the contract, require no service ; but where a feudal title is to be completed, or a personal right to be taken up, service must be expeded according to the cir- cumstances (w). Case 9. — Service is unnecessary by a party, whether the heir-at-law or a stranger, having J2<5 crediti under a trust- conveyance. The fee being vested in the trustees subject to the purposes of the trust and the claims of those having an interest under the deed, the latter take not as heirs, but as creditors (?^). Case 10 General service may become necessary from a defective or limited infeftment. (1.) As a precept of sasine is not exhausted by the act of infeftment, unless the instru- ment of sasine be valid and also duly registered, (above, § 83,) ^"'7."''[ 335. PAUTICLLAR CASES. J General Heirs. ) I Service. it follows that the right remains personal, and must be taken up by general service. (2.) Let the case be supposed of a destination by A. to J?., his eldest son, for his liferent use only, (or allenarlij,^ and to the heir-male of his hody in fee ; that a charter of resignation is obtained from the superior in the like terms, on which B. is infeft, but that his sasine is limited by the words, liferent state and sasine, which import infeftment in a bare liferent only, and not in a fiduciary fee ; (see § 320.) But as a destination in the terms supposed gives a right of fiduciary fee to the father for behoof of his children, service in general to B. by his heir-male will carry the personal right of fee on the expiry of the liferent by B.'s decease. The same proceeding will be followed where the exclusion of the terra, allenarly, has made the fee in B. not fiduciary but absolute, and the infeftment has been limited to a liferent ; (see as above.) (a) See Colquhoun, as in (jr) ; and Mackenzie, as in (e); Macculloch, 10th July 1731, 14,.3G6; Day, 30th June 1758, M. 14,369, B. S. 5. 351. (/>) See 1G93, c. 35, above, p. 100. (c) Peacock, 22d June 1826, F. C, 4 S. 742, The destination was by A. to the heirs of his bodi/, tvhom failing, to B., and B. obtained infeftment without having adopted any proceeding for having it ascertained that A. left no issue. The decision was that this infeftment was invalid ; but there was no finding that service was either necessary or competent, nor does it appear that there was any decided opinion expressed whether service or declarator was the correct form. (f/) Crs. of Gordon, 8lh Feb. 1748, M. 14,368; Kilk. Kcport. The form of the destination was by A. to the heirs of his body, whom failing, to B., &c. and the heirs-mule of their bodies. The granter having died without issue, B. served to the granter, and the service was sustained as effectual. (e) See Colquhoun, as in (*/) ; Peacock, as in (c). See Mackenzie, 24th Nov. 1818, F. C. (/) Ersk. 3. 8. 73 ; and case of Mercer referred to ; Dennistoun, 5lh Feb, 1824, 2 S. 678. (f/) Colquhoun, 16th Dec. 1828, F. C, 7 S. 200; remitted, 5 ^V. S. 32; adhered to, 8th July 1831, F. C, 9 S. 911. See ISIackenzie, as in (t). (/i) Murray, 21st May 1833, F. C, 1 1 S, 629, The destination was by A. to himself in liferent, and to B., his nephew, in fee ; whom failing, to C, the brother of A. ; whom failing, to the heirs-male of the body of B. ; whom failing, to other substi- tutes. (/) See Peacock, as in (c). (A) Lord Pitmilly in Peacock, as in (<•). See Logan, 20th Dec. 1836, F. C, 15 D, 291. (/) Cameron, ! 8th Nov. 1784, M. 12,879. {m) Ersk. 3. 8. 40; Campholl, J;vn. 1742, M. 12,865; Anderson, 16th 454 ^:i:'\ 335. PABTICULMt CASES. | « ^ ) Nov. 1747, M. 12,8G8; Moncrieff, 8th Dec. 1759, M. 14,418 and 12,871; Ogilvie, 16th Dec. 1817, F. C. («) Gordon's Trs. 4th Dec. 1821, F. C, 1 S. 185; Russell or Macdowall, 6th Feb. 1824, F. C, 2 S. 682 ; Leiteh's Trs. 2d June 1826, F. C, 4 S. 659 ; affirmed, 17th Feb. 1829, AV. S. 2. 366. 336. Tentative title General service is effectual as a prima facie, or as it is styled, a tentative or jmtative title, in the person of one who claims a right to a subject to which an- other has made up a feudal title («). A tentative title of an- other description, by trust-bond and adjudication, has been recognised by statute (h). (See Trust-Adjudication.) (1.) - Service for the purpose of establishing a tentative title is strictly of a declaratory nature, and must be in the precise cha- racter in which the right to be vindicated descends to the party serving. Thus, a service as heir of line in general is not a title to pursue reduction of an infeftment in lands des- tined to heirs of provision (c). (2.) This kind of service seems competent or necessary only, where the investiture to be chal- lenged has proceeded upon a conveyance from the ancestor, and against which he had himself a right of action ; and it vests in the heir that right of action only, and no immediate right which is capable of being feudalised. If the right of action depends on a, jus crediti, e. g. where the heir under a marriage-contract, or a substitute of entail, seeks to reduce deeds executed in the one case, contra Jidem tahularum — in breach of the contract, and in the other in contravention of the entail, service is not requisite. In like manner, an heir of provision challenging, on the ground of illegitimacy, the status of a prior possessor of the estate, who had made a settlement to his prejudice, may sue on his bare right of ap- parency {d). (3.) But a tentative service otherwise compe- tent has been held to be excluded by a prior service to the ancestor in general, or even in special in the same character, (for a special service includes a general ejusdem generis) {e). The practical effect of this doctrine, if considered to be finally established, will probably be to introduce, of necessity, the form of declarator without even a prima facie title in the heir, wherever the investiture to be challenged has proceeded upon a service cither general or special, unless he can con- 455 ^;;":> ""H 330. tentative title. j ^;^""!' Ileirs. i i Service. nect himself by g'cneral service with an ancestor whose rela- tionship necessarily implies the foct of the heir being likewise the heir of that ancestor to whom the former service had been expede (f). Originally, indeed, the general service for a tentative purpose was sanctioned on the sole ground of ne- cessity, because service in special is incompetent when the fee is full {(/) ; and prior to the case of Cochrane, its com- petency, even after a service to the same ancestor had been already expeded, does not appear to have been questioned (A). The case is manifestly different where personal rights have been carried by the prior service. These having been taken out of the h(2rcditas jaceiis of the ancestor, and vested in the heir first served, a second service would be plainly inept as a proper general service. («) Meiklo, 18th Nov. 1634, M. 16,091 ; Strowan, 26th Feb. 1681, M. 16,096 ; Horns, 6th Nov. 1746, M. 16,117. Q)) See 1693, c. 24, above, p. 206. (e) Maecallum, 21st Feb. 1793, M. 16,135. (d) See Riithcrfurd, 12th Nov. 1830, F. C, 9 S. 3. (e) Cochrane, llth March 1828, F. C, 6 S, 751; reversed, 29th .\i>ril 1830, 4 "\V. S. 138. Sec, in particular, opinions of Lords Balgray and Medwyn. (/) See Anderson, 22d June 1832, F. C, 10 S. 696. The sulTiciency of the service to give a title by implication is assumed in the note of the Lord Ordinary (Moncreitr,) but the Court reserved the point. See Kutherfurd, as above. ('d as ancnt the exception maid apon the summound- ing of inquest upon fifteene daies before after the form of the statute of King Robert (pihilks maks mention that the inquest sould be summound upon fifteene daies before it sail be leitTul notwithstanding the said statute to the Scheriffe or any other officiar that is judge to the brieve of inquest to summound the said inquest upon quliat daies he pleasis or upon short time notwithstanding the said statute and gif they be present in the tolbuith unsuramoundcd so that there be na uther lauchful exception against them it sail be leifl'ul to the Scheriffe or offieiars to compel them to passe upon the said inquest And attour because tlicre hes bene ane abusion in the crying of the Kingis brieves in stewartries and bailliaries quliair they were cryed at ane hill na confluence of people being there throw the quhilke na knowledge theirof might cum to the partie Thei*e- fore it is statute and okdained that all maner of brieves of inquest sail be cryed at the mercat-croce of the burgh openly in plain mcrcat quhen maist confluence of people is gaddered swa that the crying thereof may cum to the knowledge of the partie defender quhair it suld be served and quhat day And that the said brieve be thrice cryed plainly togidder and betwixt ilk crying the space of all the three cryingis And that all ofliciaris of the town be warned to compear at the said proclamation to bear witnesse And gif it sail happen that the antecessor of ony claimand right decease sa nere the terme of Whitsunday and Martiiimes that the persewer may not get it upon ane mercat day for neare- nes of the term of Whitsundaij or Martinmes in that case it sail bo leifful to him to gar cry his brieve upon ony wolk day swa that ho have the otHiciaris of the townc and part of the honest personos to the number of sex persones salfand to our Soverainc Lord his warning upon fourtie daies after auld use and consue- tude. (rf) 1503, c. 94, as above; Stair, 3. 5. 30. (e) Stair, as above; Ersk. 3. 8. 60; Meldrum, 10th Nov. 1696, B. S. 4. 327. (/) Jurid. Styles, 1. 375. ((/) Ogilvie, 25th Feb. 1595, M. 14,423. See Sutherland, Jan. 1743, M. 16,347. 339. Preliminary procedure I. Juri/ After the expiry of the inducia^ the brieve and executions are presented to the Sheriff in a court held by him under the authority of the brieve. A jury i.s then oinpanneled, consisting of fifteen 458 ^"'7 "H 339. PRELIMINARY PROCEDURE. j. ^°™^ ^". Heirs. 3 ( Special Service. persons ; but for this number there seems no other authority than inveterate custom («). The jurors were originally the pores cKvicB, or co-vassals of the ancestor. Afterwards those were admitted on the inquest whose rent exceeded L.40 Scots, although neither co-vassals nor even resident in the neigh- bourhood (b). But, for a long period, all persons of mature age, and not legally incapacitated, have been received as jurors, and they may competently give evidence as witnesses. It is sufficient that a majority concur in the verdict (c). 2. Preliminary objections — At this stage, an opposing party, whose interest is allowed, may be heard upon objec- tions in point of form, provided they are capable of instant verification, for the brieve of inquest is not a pleadable brieve or brieve of plea {d). (1.) He may object that the brieve is " razed or blobbed in suspect places, that is to say, in the " name and the surname of the follower (claimant) and of the " defender, and the name of the land or of the cause upon " which the brieve was purchased, and the date (e)." (2.) Similar objections are competent against the executions ; but the objector cannot suspend the proceedings by means of an action of reduction-improbation of an ex facie regular execu- tion (/"). (3.) The opposing party may plead on an exclusive title, and by shewing that the fee is full, he is entitled to have the claim dismissed [g). But the proof must be by a sasine proceeding on the precept of the true superior authorised by special service, or on that of the ancestor confirmed by the superior (A). It is not enough to produce a sasine on a subal- tern right granted by the deceased, or even on a disposition of sale, for until the mid-superiority created by infeftment on the indefinite precept be evacuated by confirmation, there is :io feudal obstacle to the entry of the disponer's heir (/). And it is manifest that the production of a deed of conveyance by the ancestor not feudalised can be no bar to the special ser- vice of the heir of line (/t.) (4.) He may stop the service by producing a rctour of his own service in special to the ances- tor in the lands expressed in the claim. (5.) He may, under the statute of 1503, propone the objection of bastardy; but, to be entitled to state this objection, it is thought the opposing party must be in possession of a gift of ultimus Jiccres. 459 ^"'7"fJ 330. PllELIMINAUY PHOCEUUIU£. L ^'.Tc '"• Heirs. ) I opccial Servic (n) Craig, 2. 17. 27 ; Stair, 3. 5. 31 ; Ersk. 3. 8. 59. (6) Craig, 2. 17. 28. ((■) Stair and Ersk. as in («) ; Juriil. Styles, 1. 376; Anderson, 29th Dec. 1649, B. S. 1. 447. Sec Dunipaec, 5th March 1554, M. 14,422. (>, M. 14,010-19. This was a general service, and 4G2 ^,f y "f [ 342. CLAIM— SECOND HEAD. } ^ ^^\'''' '\ Heirs, i I Special Service. in the claim the lands were expressed, which was hold to remove all doubt as to identity. (c) Stair, 3. 5. 35 ; Ersk, 3. 8. 66. (f/) Stair, Ersk., as above. (e) Same refer. ; E. of Cassilis, 22d July 1629, M. 14,423. 343. Third head (a) — The statement in this head of the claim, that the claimant is of lawful age, is now mere style. During the existence of wardholding, an heir in minority could not demand an entry from the superior, unless under an express provision in the charter, since he was considered unfit for military service ; and the brieve therefore contained a warrant to inquire if the heir was of lawful age. (a) Third head of brieve Et si sit legitimsc setatis. Third head of claim.— And that I am of lawful age. 344. Fourth head («) 1. Opinions respecting the old and new extent This head of the claim and brieve relates to a subject of considerable difficulty, and which has afforded much scope for the ingenuity of our writers. In the brieve the question put is, " Quantum valent diet, terrce i^vj^c per annum et ^'^ quantum valueru7it TEMFOTiE PACis." (1.) Craig is of opinion that the terms, nunc, et tempore pads, as referring to the old extent of lands, (antiquus extentus,) which was the true value at the period when itVas estimated, and the new extent, (novus extentus,) which differed according to the soil and cul- ture of the several districts of the kingdom, meant, the former, the time of our ancestors who now rest in peace, and the latter, the valuation in use at the date when he wrote {b). This de- finition is vague and unsatisfactory. (2.) Lord Stair (c), on the other hand, adopts a view which is expressly rejected by Craig. " The casualties of superiority," (says Stair, after adverting to the notion of Craig,) " were of old the chief " patrimony of the Crown of Scotland, and were further ex- " tended than of late ; and, therefore, it seems that the time " of making the new retour and cause thereof was the fre- " quency of war requiring an addition to the royal revenue. " And though, through the alteration of the rate of money, " neither of the retours be now considerable, yet doubtless " they were very considerable in these times. So that by 4G3 ^^2:!\ 344. CLAIM—FOURTH HEAD. \ s^ii:;";^;;;,,. " quid valent nunc is to be understood in the time of war, at " wliicli time the new retour was made, which is more evident " from the opposite member which is the vahie in the time of " peace." (3.) But the generally received explanation of the terms, nunc valent ct quantum valuerunt tempore pads, is that given by Lord Kames, and adopted by Mr Erskine {d). 2. Old extent It is conjectured by Lord Kames that the old extent is the value of the lands in the kingdom, ascer- tained by a general census or valuation which appears to have been taken by Alexander IIL about the year 1280. That extent was never permanently superseded, but continued, until a comparatively recent period, to be the rule for propor- tioning the public subsidies chargeable against landholders, as appears by a tax imposed so late as 1G33. The insertion of the old extent in retours came probably to be enjoined, in order to furnish the officers of the Crown with authentic evi- dence of the valuation on which each landholder was to be rated both for public subsidies and the casualties of superio- rity. In 1326, an indenture or agreement passed in Parlia- ment between Robert I. and his freeholders (e), whereby, on the recital that the Crown revenue had been greatly lessened by the recent wars, they granted to the King the tenth of their rents according to the census of King Alexander, but under the condition, that in lands which had been devastated by the war, the proprietors were to be allowed such an abate- ment as should be settled by an inquest. The circumstances under which this agreement took place seem thus to furnish a natural explanation of the terras of the brieve, whether we refer the words tempore pads to the agreement itself, or to the peace recently before concluded between the two kingdoms the word pax having both meanings. The new valuations thus provided for in a portion of the lands in the kingdom are supposed by Lord Kames to have received the designation of the new extent ; but it is certain that they do not form what we now style by that name. It appears from old retours, that in the course of time an injunction to the Sheritl" came to be introduced in brieves of inquest, to return both the former and the existing rents of the lands, and that the latter were not always under, but frequently above, the old extent (/). 4G4 ^uZs^\ ^'^'^' CLAIM.-FOURTII HEAD. { gpeSlTervicc. From this it is manifest that these new valuations could not have proceeded upon the indenture with King Robert ; and it is probable that by this time the non-entry and relief duties had come in many instances to be estimated by a new valua- tion taken by the inquest, and inserted in the retour, whilst the old extent, or an occasional general census, regulated the imposition of public taxes. A general valuation, we know, took place in 1424 {rj), for levying the sum payable to Eng- land for the education and maintenance of James I. ; and it is conjectured by Mr Erskine (A), that a prior census had been taken about the year 13G5 or 1366. These later general valuations appear, however, to have been for temporary pur- poses, and never to have superseded the old extent of King Alexander, which, even after the passing of the statute of 1474, (below. Art. 3.) continued to be the rule for imposing public subsidies. All our authors agree that the old extent expressed in retours was according to the valuation of that Prince. During the Usurpation commissioners were appointed to make a new valuation of every county in Scotland, a mea- sure which was sanctioned, after the Restoration, by the Act of Convention of 1667 ; and the old extent was at length superseded by the rate fixed by the commissioners, which has continued under the denomination of the valued rent to be the rule for levying the land-tax and certain other public burdens ; (below, Art. 4.) It has long been superfluous to insert the old extent in retours, although, until the abolition of freehold votes, it was still convenient to introduce it where it exceeded 40s. Scots. 3. Neiv extent The rate properly so called was in- troduced by the statute of 1474 (/), which enacts, that it be answered in the retour " what the land was of availe of the " auld, and the very availe that it was worth and gives the " day of serving the brieve." From these expressions it may be inferred that the practice which has been alluded to, of in- serting a new extent in the retour, whether ascertained by a general valuation, or by the inquest in each ptirticular service, had not been general, and that superiors were thus defrauded of their just casualties of non-entry and relief. But this act, although at first partially obeyed, soon lost its elFcct ; for it 4G5 ^Tl^^l 344. CLAIM.— FOURTH HEAD. 5^ ^•',''^* '". il»-MiB. ) I Special Service. appears, that after lands had been once valued by an inquest, the extent thus ascertained was ever after inserted in the re- tours as the new extent ; and that, where the provisions of the enactment had been neglected, the new extent came usually to be fixed at the quadruple of the old (/<). It is still neces- sary to insert the new extent in retours, as being the rule for imposing the non-entry and relief duties payable to the supe- rior; (below, § 3G3-4.) In feu-holdings, the feu-duty is the presumed annual value, and is therefore the new extent. .4. Valued rent — The fixed rate appointed under the authority of Cromwell, and sanctioned by the Convention Parliament, is called the valued rent. It is the statutory rule for calculating the non-entry duties in lands formerly held ward, now blench, of the Crown, and is therefore insert- ed in the retours of special services to such lands (l). 5. Proof. — The old and new extent are instructed to the inquest by a former retour, the valued rent by the certi- ficate of two connnissioners and the clerk of supply of the county where the lands lie. In the absence of a retour, the extents are estimated by the proportion which the valued rent bears to the valued rent of other lands, situated within or adjacent to the shire where the lands are situated, of which the old and new extents are known, agreeably to a rule esta- blished by the Court of Exchequer (iii). A calculation by an accountant on these data is in practice received by the Court of Inquest, as evidence sufiicient to sanction the insertion in the retour of the sums reported on as the old and new extents of the lands (n). But the old extent may now be omitted as superfluous. (a) Fourth head of brieve. — Et quantum valcnt diet, terrse et annui redit. cum pertinen. nunc per annum et quantum valuei-unt tempore pacis. Fourth head of claim. — And that tbe said lands and others above described are now worth yearly the sum of (^uetv extent') and were worth the sum of {old ex- tent) money foresaid in time of peace. (6) Craig, 2. 17. 35-G. (c) Stair, 3. 5. 38. (^d) Kames' Law Tracts, OM and New Extent; Ersk. 2. a. 31-4. {e) See extract in Advocates' Library. (/) Ersk. 2. 5. 32. ((/) Black Acts, c. 10-11. (/») Ersk. as in (/'). 2 G 4 Of) ^"^'7 °n 344. CLAIM.— I-OUIITH HEAD. j ^ ^.''^'f '". Heirs. 3 I Special Service. (i) 1474, c. 55. (^) Skene, v. Extent, (l) 20 Geo. II. c. 30. (»0 17th Feb. 1731. In) Jurid. Styles, 1. 384. 345. Fifth head («) — The person of whom the lands are held as superior is shown by a former charter or retour. («) Fifth head of brieve. — De quo tenentur. Fifth head of claim. — And that the said lands and others are holden immediately of her Majesty and her royal Buccessors (or other superior.) 346. Sixth head («) Under this head, the tenure and reddendo, which regulate the casualties of superiority, are proved by the same evidence as the fifth head. (a) Sixth head of brieve, — Per quod servitium tenentur. Sixth head of claim. — In (feu or blench) farm fee and heritage for payment of (dut7j filled up from the reddendo of last charter or retour.) 347. Seventh head (a) This, the last head of the claim and brieve, relates to the ])eriod which has elapsed since the ancestor's death, as regulating the casualty of non-entry. If the lands are in the possession of a tercer or other liferenter, the casualty is excluded; (below, § 363); and such posses- sion is stated in the retour. But the heir is nevertheless en- titled to be served, and to be infeft in the fee. (a) Seventh head of brieve. — Et in cujus manibus nunc sunt. Seventh head of claim And that the said whole lands and others above described are now and have been in the hands of her Majesty immediate lawful superior thereof (or other superior') by reason of non-entry since the death of the said B. my father which happened upon the day of and so have remained in the hands of her Majesty for the space of years months or thereby through my not having prosecuted ray just right thereto as nearest and lawful heir therein of the said B, my father. Therefore &c. 348. Objections on the merits 1. Parties icho may appear. — (1.) An opposing party having an interest may, ac- cording to the authorities, meet the claimant upon certain points of inquiry. But it is difficult to perceive how any interest that is not sufficient entirely to exclude the claim, (above, § 339,) could be instructed under the summary forms 467 Entry of) 348. OBJECTIONS ON MliUITS. L ^."[^ '" Heirs. J I Special Service. of a service, except by one holding a feudal right to the dis- puted subject, or acting on behalf of an heir hi utero. A party founding upon a disposition by the ancestor, on which infeftraent has not followed, has no title to stop the service ; (above, § 339) ; but although his interest does not extend so far, it would seem that he will be permitted to cross-examine the claimant's witnesses (a). (2.) In practice, accordingly, it is found, that to oppose a service effectually, the competing party must likewise purchase a brieve. By the former rule, both claimants might contend before the same inquest in the court of the Shcritf ; but the modern form is to bring up the brieve by advocation before one of the Lords Ordinary of the Court of Session, and the service proceeds according to the rules of evidence {b). (3.) Where, however, a question of law takes precedence of that of fact, e.g. if two claimants maintain the rights of two separate branches of a destination, the Court will in the first instance discuss and determine the point of law (f). 2. Illegitimacy Illegitimacy as an objection on the merits available to one having a competing brieve, is mani- festly pleadable only against the opposing party, or any of the intervenient blood through whom he deduces his right ; and not against the ancestor to whom the service is craved. Illegitimacy must be specially proponed, and in the general case the onus prohandi lies on the competitor {d). 3. Heir in utero (1.) It is a good objection to service claimed by a collateral heir, that the deceased has left a widow suspected to be with child, so long as there are hopes of her delivery {e). (2.) But there are two situations in which the plea that a nearer heir may exist is not relevant to stop the service. Where an only child predeceases his father without issue, the fiither may be immediately served as his undoubted heir, although, so long as the father lives, it is possible that his own right may be defeated by his having another child born to him (/). Again, where an heir of entail is substituted to the heir of a particular marriage, and no child has yet been born of the marriage, the substitute heir is allowed to serve and enter into possession in the meantime, under an implied oblication to denude in favour of the nearer heir, on his 2 G 2 4G8 Entry of ) o ill necessarily vest in the heir all personal rights, and those quasi feuda which are transmissible by general service in the cha- racter set forth in the brieve, claim and retour (c). This effect of a general service is relied on in practice ; and it seems to follow, that if the right is once vested, it cannot be after- wards evacuated by the delay or neglect of the heir to follow up the service as a proper special service ; otherwise it must result, that infeftment on a conveyance carried by the implied general service would be a defeasible title (f/). (3.) Special service is a title of prescription of the right of succession, and bars all challenge of the propinquity of the heir after twenty years [e). («) Juritl. Styles, 1. 387-8. (ft) 1 and 2 Geo. IV. c. 38, § 12. (c) See Cochrane, lllh March 1628, F. C, and 6 S. 751 ; reversed, 4 W. S. 138. (rf) See More's Notes on Stair, p. cccsxvi ; Boll's Princ. 1847. () ; and the rule applies to the service of one as heir of line, who is likewise heir-male (c). Thus, also, a service as heir-male and of line will not connect the heir so serving with a deed executed by the ancestor to whom the service has been expcde, under which he is heir of provision nominalim, although the heir may happen to be truly the heir of provi- sion ((1). In these instances, either the characters are not necessarily identical, or there is an absence of specialties sufh- cient to infer the necessary connection of the heir with the right to be taken up by the service. (3.) But whore the cha- racter hi which an heir claims necessarily includes that par- ticular description of heir to which the right belongs, e. g. where an eldest son claims as heir of line to his father, or an heir-male as nearest heir-male of tailzie and provision, his service as such implies that he is likewise heir-male, and therefore carries rights destined to heirs-male (c). Thus also, if a party serving as heir of provision specially describes a subject to which he has right, not as such but as heir of 472 Entry of > op^A ^taiht 5 Forms in Heirs, i 001. CLA131. ^ General Service. line, and condescends on the deed by which the right is con- stituted, the character in which he is served docs not vitiate the retour, as he is thus connected by name both v.ith the deed and the subject under and to which a title is to be com- pleted {/). A general service of this specific description is analogous in form to a special service, in which it is thought that a less critical interpretation would be given to the speci- fication of the heir's character ; (above, § 342.) (a) Cairns, 12th Nov. 1742, M. 14,438. (b) Edgar, 21st July 1738, M. 14,015; Elcli. Sirv. of Heirs, No. 2; Cou- terallers, 2cl Feb. 1742, 7 B. S. 5. 717. (t) See Bell, 21st June 1749, M. 14,016-19, (d) Cathcart, 16th Nov. 1802, M. 14,447 ; as altered on remit, 24th Nov. 1807, M. App. V. Serv. of Heirs, No. 2 ; affirmed, 31st May 1825, W. S. 1. 239. (e) Livingston, 13th Dec. 1705, M. 14,004; Haklane, 27th Nov. 1766, M. 14,443. See E. of Dalhousie, 13th Nov. 1712, M. 14,014; Anderson, 22d June 1832, F. C, 10 S. 696. (/) Bell, as in (c). 355. Procedure To the extent of the inquiry the pro- cedure in a general is similar to that in a special service. The evidence of the propinquity, which is frequently remote, cannot in all cases be rested on hearsay or common fame. It often becomes necessary to found upon and produce ancient retours, charters, sasines, extracts from parish registers, family bibles, and other documentary evidence, in order to make out even a, prima facie case. Where claimants are in competition the proof must of necessity be carefully prepared and addu- ced (a). (a) Stair, 3. 5. 35. 356. Objections 1. Preliminary The objections of a preliminary or exclusive character seem to resolve into these : Jirst, That the brieve or executions are informal ; (see above, § 339. 2.) ; secondly, That the opposing party has already ex- pede a general service in the character expressed in the brieve ; or even a special service in the same character, since a special includes a general service ejiisdem generis (a) ; and, thirdlij, that the ancestor was illegitimate, and that the opposing party has obtained a gift of ultimus hares from the Crown. But these objections must be instantly verified {l). 473 'ify^ff 356. OBJECTIONS. {,. Form, in llcirs. J I General Service. 2. On the merits Without a competing brieve In the same character as that maintained by the claimant (c), an op- posing- party has no title to go to proof in a general service, unless, perhaps, in behalf of an heir in utero ; but this excep- tion may appear to be ])rcllminary. In a special service, the rule is necessarily dilferent in a limited number of cases. A party, for example, infeft on a precept of dare constat by the superior has thus a feudal title to the lands, which, although not sufficient to exclude special service by another, as being- granted without the legal warrant and'authority of a retour, seems a good title to oppose the claimant on the merits with- out a competing brieve ; (above, § 348.) {a) See Cochrane, 11th March 1828, F. C, 6 S. 751; revered, 2'Jth April 1830, 4 W. S. 138. (h) 1503, c. 94, p. 457. (c) Forbes, 3d July 1810, F, C. ; Cochrane, 28th June 1821, F. C, 1 S. 91 ; Aitchison, 7th March 1829, 7 S. 558. 357. Retour — (1.) The general service, when rotourcd to Chancery, gives an active title to pursue actions concern- ing the heritable subjects which belonged to the ancestor, and enables the heir to execute the feudal clauses of deeds the right to which was vested in him. Services prior to the year 1550, at which period our records were destroyed by the English, as well as those which proceeded on brieves issued in the ancient jurisdictions of regality, are valid, although the retours do not appear on record («). An extract or true copy of the retour may be obtained at any time from Chancery. (2.) General service, duly retoured, is a title to exclude all question as to the propinquity of the heir after twenty years (J)). (a) Macintosh, 2d Feb. 1C98, M. 14,431. (h) 1617, c. 13; Neilson, 17th Jan. 1837, F, C, 15 D. 365. TITLE VI. SERVICE OF KEIRS OF TAILZIE. 358. Service in gener.vl An heir of tailzie expediuo- a general service luidor the deed of entail docs not incur an irritancy by the omission of the conditions, prohibitions, or 474 ^UZ:'\ 358. SEKV.C. IN OENEKAL. Ih.^'J^,!, irritant and resolutive clauses in the retour; (above, § 281.) There is thus nothing peculiar in the procedure. The deed will be properly identified by date, and the date of its regis- tration, and the character of the claimant as heir of tailzie and provision duly set forth. The correct identification of the deed is peculiarly necessary where the claimant has right under more than one tailzie (a). (a) Forbes, 12th Aug. 1753, M. 14,431. 359. Service in special — The service of an heir of entail in special may take place either upon the death or the contravention of a former substitute. 1. To the institute, or a substitute deceased. — The ser- vice proceeds on a brieve obtained by the heir in the ex- press character of heir of tailzie and provision. The claim will contain, under the first head, not only the lands but the destination, in so far as not already exhausted, and the whole conditions, provisions, prohibitions, and irritant and resolutive clauses of the entail («). The prayer will be to serve the claimant as nearest and lawful heir of tailzie and provision to the member last vested and seised in the lands as of fee, but always with and under the conditions, &c. of the deed. The propinquity, in so far as it rests on the evidence of relationship, is proved as in the ordinary case, (above, § 342,) and the titles of the last possessor connect that evi- dence with the destination. 2. On declarator of contravention Service to a re- moter ancestor, on the contravention of the heir last in posses- sion, proceeds in a similar form ; but there is added to the first head of the claim a statement of the title of the contra- vener, and of the decree of declarator by which the forfeiture is instructed. The term during which the lands have been in non-entry commences at the date of that decree [h). (a) Jurid. Styles, 1. 396-7. Q)) Jurid. Styles, 1. 399. 475 ""uZs^l 360. PURPOSE. 5 ., •^"•.^7 ' cum eiitarii. TITI,E VII. SERVICE CUM BENEFICIO INVENTARII. 360. Purpose — This form of service has no peculiar U'u- (lal effect, being employed for the purpose of restricting the liability of the heir to the value of the subjects specified in the inventory (a), and his title is unqualified. Reference is made to the Style-book (b). (a) IC95, c. 24. (6) Jurid. Styles, 1. 401. TITLE VIII. CROWN PRECEPT. 361. Purpose In Crown-holdings, the next step in the entry of an heir whose ancestor died vested and seised as of fee, is the precept issued from Chancery for the heir's infeft- ment, proceeding on the narrative of the retour of his special service. As regards the heir it is a mere warrant for infeft- ment (a). It is directed to the Sheriff of the shire where the lands lie, and is executed by him as bailie of the Sovereign, and by the sheriff-clerk as notary. The Sheriff is farther commanded to take security from the heir for the non-entry and relief duties payable in respect of his entry, which are calculated to the term of Whitsunday or Martinmas preced- ing the service. The effect of the precept is limited to the term following its date by the words, ^^ jo-ccscnfibus post proxi- " mum tcrmlnum minimc vuUturis (i)." This leads us to con- sider the origin and nature of these duties. (fl) Jurid. Styles, 1. 389. (Jj) Note. — Sir Thomas Hope (Min. Pr. r. Ward, Non-entry, Src. § 16, 17,) thus describes the duty imposed on the ShcrifT: " Item, The Director of the " Chancery upon the service being retoured directs precepts inclosed in white wax " as tlie brieves arc to the ShcrifT of the shire where the lands lie which precepts " bear a command to the Sherilf to give sasine of the lands to the person who is " served and retoured heir to his predecessors but with this clause " capiendo " seciiritatcm pro decern aut viginti Uhris, i^'c." or so much more as the retoured " duty comes to yearly, for so iHany years as the lands by retour are found to be " in non-entry and also for a year's duty of the new extent or retoured mails pro " rclevio if they be ward-lands ; and if they be blench for duplication of the blench- 476 ^,tL"'J 3Cl.r«nposE. \Z°Z. " duty ; and if they be feu for duplication of the feu-duty ; and at the delivery " of this precept of sasine by the director to the party, there is insert by the " director in his book called The Book of Responded, note of the sums for which " the Sheriff shall take security in this form, Respo7idehit vicecomes pro summa — «' rationc sasincc Sfc. Danda tali &^c. de terris Sfc." And according to this Re- " spondc the Sheriff is charged yearly to make compt to the Exchequer, which *' holds yearly in July. Conform to this precept the Sheriff, when the same " is presented to him, takes good security for payment of the money contained in " the precept, and thereafter gives sasine, and for giving thereof takes a sasine- " ox. And although the precept be not presented to the Sheriff, nor sasine " taken thereof, yet the Sheriff, by custom of the Exchequer, is still charged " with the Respond, and compelled to pay the same, whereof there is no pro- " bable cause but this, that it is presumed that the party raiser of the precept " will not neglect to take sasine on the precept, especially seeing it bears this " clause, Presentihus post proxinium terminicm minime valiturisJ" 3G2. Non-entry I. Introductory remarks — Lands foil in non-entry by the death of the vassal last vested and seised as of fee, and the fee continues void until the entry of an heir or disponee by infeftraent on the superior's charter or pre- cept, or his confirmation of an infeftment on an indefinite precept, or a precept a me. In the early ages of the feudal system the lands reverted to the superior on the vassal's death. Even after fees had become hereditary, the investi- ture behoved to be renewed upon every change either of the vassal or the superior, and the neglect of the vassal or his heir for a year and a day to apply for new infeftment, inferred by the feudal usages the forfeiture of the fee (a). But by our customs, it is on the death of the vassal only that the infeft- ment falls, and the penalty of forfeiture has never obtained by force of law, through the mere neglect of the heir to de- mand an entry. The superior, it is true, might of old have resumed possession of the lands in virtue of his radical right ; but the vassal's heir had still the remedy of a service to as- certain his propinquity, and ground a demand to be received by the superior (h). Whilst military service prevailed, the heir was excluded from the possession of the fee during his. minority, when he was presumed unable to serve his superior in war ; and in Scotland, the right of the superior to that possession was the most valuable casualty of a ward fee. The casualty received the name of ivard, as the distinguish- 477 ^,f?' «'■{ 3G2. NOX-ENTRY. J ,F'"°^^" lleirs. ) I Precfpt. ing mark of that particular holding ; and when it subsisted, the foe was necessarihj void until the heir's majority. Non- entry applied more immediately to the situation of the fee in other tenures after the ancestor's death, and before the heir demanded an entry, during which period it was volnn- tarih) void (c). But the fee was not forfeited to the superior until the contumacy of the heir had been ascertained in a pro- cess of declarator, and the right adjudged to be permanently lost. 2. Non-entry, how caused — (1.) Anciently, lands fell in non-entry not only upon the death, but by the resignation of the vassal, and the fee remained void until the new infeft- ment of the heir or resignatary. In the case of death the rule still holds, and the fee becomes again full only by the duly completed investiture of the heir, or in other words, by the registration of a sasine upon the precept of the superior within the statutory period. But by our modern practice, resignation does not vacate the fee, since the resigner is not thereby divested; (above, § 154.) (2.) A conveyance to a purchaser or other dis])onee, although followed by infeftment duly completed, does not divest the disponer, or place the lands in non-entry during his life, provided such infeftment proceeds upon a precept a mc, or an indefinite precej)t {<1). Sasine upon the former does not divest the disponer until confirmed, when, by the act of confirmation, the disponee is invested. Sasine, again, on the indefinite precept, has, initil confirmation, the effect only of creating a holding base of the disponer himself, and does not touch the fee in his person. A disponee, therefore, cannot be compelled to take an entry from the superior until after the death of the disponer, or the person last vested and seised in the fee ; (above, § 148. 4.) 3. Hoio excluded Non-entry is, in certain cases, excluded even after the death of the fiar. The principle on which exclusion operates seems to be the consent, express or implied, of the superior to an infeftment which carries the yearly fruits of the fee. (1.) It is excluded by an infeftment in conjunct fee and liferent given by a husband to his wife ; by the reserved liferent of one who grants a conveyance of the fee under such reservation, by the legal liferents of the 478 "tZ:'} 362. NON-ENTRV. J p^" . courtesy, and, so far as it extends, of the terce ; and by any other liferent confirmed by the superior (e). (2.) It is excluded (or rather the casualty is restricted) by a sub-feu confirmed by the superior (/) ; but in Stair's opinion, such confirmation imported only a passing from recognition (y). (a) L. 2, Feud. Tit. 24, Pr. (b) Rob. III. c. 19 and 38; Stair, 2. 4. 18 ; Ersk. 2. 5. 29. (r) Hope, Min. Pr. v. Ward, Non-entry, &c. § 5 ; Stair, as in {h). (d) Ersk. 2. 5. 44. (e) Stair, 4. 8. 7 ; 2. 4. 23 ; Ersk. 2. 5. 44; Bryce, lOtli Jan. 1566, M. 9333. (/) Bankton, 2. 4. 23 ; Ersk. as in (e). I'f/) Stair, 2. 4. 23. 363. Non-entry duties — 1. Effect of non-entry — (1.) As the right of the vassal's heir or disponee to a renewal of the investiture is not cut off" by mere delay to apply for an entry, he is allowed, in the meantime, to possess the subject, although, in technical language, the fee is said to be void and fallen to the superior by reason of non-entry. But in theory the superior has a right to the maills and duties of the lands from the day of the vassal's death, notwithstanding the possession of the heir or disponee. These duties were in- tended to be fairly ascertained, by means of the brieve of in- quest, under the name of the new extent, (above, § 344. 3.) which is the standard by which the non-entry duties before citation are still levied, and for their recovery the superior has the most effectual remedy consistent with the possession of another, viz. poinding of the ground. (2.) But after cita- tion in the action for having the fee declared to be forfeited by reason of non-entry and the contumacy of the heir or dis- ponee, the superior is held to have the right of possession, and consequently to levy the rents payable to the actual pos- sessor ; and decree in the declarator, whether to the eftect of absolute forfeiture, or for payment of the rents until the entry shall be completed, accordingly carries back the right of pos- session to the date of citation (a). 2. B"''f :JG4. RELIEF. -J.P"^" Heirs, i I Precei>t. prevailing notion, relief was not exigible in that holding, un- less expressed in the charter, pleriquc non dcbcri j'utant nisi. idy ex pacto^ in instrumento feudi expresse contineatur. But it is true, that in the following section he in some measure qualifies this statement, by ascribing the common oi)inion that relief was confined to ward-holding, to its trifling amount in blench-holdins-, and in feu-holding to the circumstance that it appeared to be matter of ordinary paction (c). Sir Thomas Hope derives the origin of the term in ward-holding, from the nature of the payment by the vassal's heir, as being " a relief " for relieving him out of his ward ;" and he ascribes the payment of a duplication of the duty in blench-holdings to an imitation of this relief in w^ard. " And as to feu-lands, (he " says,) the clause of the charter commonly bears dupUcando ^^ feiidifirmam primo anno introitus cujusUhet hceredis ; and if " the charter bear it not, yet the custom of the Chancery is " not to give out a precept upon a retour but with this clause, " capiendo securitatem pro duplicatione feudijirmce {d). Ac- cording to Hope's opinion, therefore, the casualty of relief in feus held of the Crown, when not conditioned in the charter, depended on the practice of Chancery. Mackenzie observes generally, that in blench and feu holdings, the relief is the double of the duty (e) ; and Lord Stair remarks, that it is due without paction in feu-holdings, founding his opinion, however, on the undecided views of Craig and Hope (f). But the authority of Mr Erskine, which is entitled to the greatest weight, as formed upon a review of the opinions of the earlier writers, is expressly in fiivour of the right of the superior to the relief in feu-holdings, without a special provision in the charter (^7). At the same time it must be observed, that he rejects the authority of two decisions to the eftect that the heir of a feuar cannot be required to double his feu-maill or feu-farm at his entry to the lands, if he be not bound to that condition by the terms of his infeftment (A). And thus, al- thouo-h in practice the opinion of Mr Erskine seems to have been adopted, the question may yet perhaps be considered open, 2. How estimated Relief in Crown-holdings, whether 2 H 482 ^^^fl 3G4. HELIEP. |p^™;». blench or feu, is uniformly ten merks Scots (z). When the superior is a subject, it is a duplicand of the feu or blench duty. In regard to the relief formerly due in ward-holdings, reference is made to our systematic writers (k). (a) Craig, 2. 20. 30-3. (6) Imp. Leonis Constit. xiii. (c) Craig, 2. 20. 32-3. (d) Hope, Min. Pr. v. Ward, Non-entry, &c. § 12. (e) Mack. 2. 5. 22. (/) Stair, 2. 4. 27. (.9) Ersk. 2. 5. 48. (/() Kincaid, 1st Dec. 1610, M. 13,379; E. of Dundonald, 24th Nov. 174G, noticed in report of Kincaid. (i) Jurid. Styles, 1. 435. {k) Craig, 2. 20-33 ; Stair, 2. 4. 27 ; Ersk. 2. 3. 49. 365. Instrument of sasine (a) — (1.) The sasine upon the Crown precept is, like its warrant, in the Latin language. It is authenticated by the sheriff-clerk of the county where the lands lie, and it must bear that sasine has been given by the Sheriff or his substitute as the bailie of the Sovereign ; (above, § 62. 3.) (2.) If the Sheriff should refuse to give sasine, or be the party to receive infeftment, a warrant will be obtained fi'om the Court to the Director of Chancery to issue a pre- cept directed to another, as Sheriff' in that part (h). (3.) In- feftment must be given on the Crown precept on or before the next term of Whitsunday or Martinmas following its date, after which, by the operation of a clause above noticed, (§ 361,) the precept ceases to have force. The effect will be the same of delaying to record a sasine taken upon the pre- cept within the statutory period of sixty days ; the term-day being past, infeftment cannot be given of new. But another precept may be ohtained in which the non-entry and relief duties, calculated of new, will be inserted, as they amounted at the term of Whitsunday or Martinmas preceding the date of the precept (c). (a) Jurid. Styles, 1. 390. (Jj) Dallas, p. 883; Jurid. Styles, 1. 392; A. S. 13th Feb. 1678. (c) .Turid. Styles, last ref. •is:) ^,'ir'! »«"• VO...)NT.U.V, OP. ON- CMA,,... { ^'^1:^,, TITLE IX. PRECEPT OF CLARE CONSTAT. 366. Voluntary, or on charge — (I.) The entry by precept existed prior to the introduction of the service as a means of ascertaining the heir's propinquity ; (above, § 331. 1.) After the retour of service was recognised asf'a warrant for enforcing an entry, the precept for the heir's infeftment, when still granted voluntarily, assumed the name of precept of dare constat^ as granted on the private knowledge of the superior, the precept upon a retour being styled precept of sasine (a). In our present practice the writ is called precept of dare con- stat indifferently, whether granted on the private information of the superior, or on the evidence of a retour. (2.) The forms introduced for compelling superiors to enter the heirs of their vassals were fortified by the sanction of the loss or tinsel of the right of superiority during the lifetime of the heir. These forms are minutely described by Hope and Dal- las {h). They have given place to the statutory remedy of letters of horning passed in virtue of the retour of the heir's special service upon which the immediate superior is charged, upon an indudce of fifteen days, to grant precepts to the heir ; and if obedience is withheld, the heir may charge the mediate superiors in their order upwards to the Sovereign, who refuses none {c). When the superior has a claim against the vassal or his heir, which would be affected by obeying the charge, he may have the question determined in the form of suspension ; but it is not a ground for a stay of diligence, that the supe- rior has already granted a voluntary precept to another ; (below, § 368. 5.) The obligation of the superior to give infeftment to the heir is conditional on his receiving the non- entry and relief duties, exigible from the heir. (3.) When the right of superiority is vested in two parties in fee and liferent, both the fiar and liferenter must be charged, and ought to join in granting the prccej)t. But lifcrenters by reservation may enter vassals without the concurrence of the tiar. This privi- lege, which attaches to the original infeftment of the liferenter, has never been doubted to the extent of enterino- heirs [d) ; 2 II 2 484 ^"'7 """^ 3GG. VOLUNTARY, OR ON CHARGE. \ ,.f'"°7^' "/, Heirs, j ' I Clare Constat and Craig carries it the length of receiving singular succes- sors on resignation, a view which seems to be confirmed by statute (e), and necessarily embraces entry by confirmation. The rio'ht of the liferenter by reservation to enter heirs and disponees implies a title to receive the casualties of supe- riority falling during his lifetime (/). (4.) The eldest of hcirs-portioners has the sole right of entering vassals, but the concurrence «Jf the co-heirs will not injure the precept. (5.) The Court have the inherent power of authorising the entry of vassals, in subjects sequestrated under their authority ; and when the circumstances render such authority necessary, they authorise their factors to grant charters, precepts of dare con- stat and all other writs and deeds requisite in entering and receiving vassals, on payment of the feu-duties and usual casualties of superiority {g). (a) Hope's Min. Pr. v. Ward, Non-entry, Sfc. § 21, 24; Dallas, 819. (6) Hope's Min. Pr. as in («), § 16, et seq. ; Dallas, 884. (c) 20 Geo. II. c. 50; Jurid. Styles, 1. 633; 3. 691. \d) Ersk. 2. 9. 42. (e) Craig, 2. 22. 5 ; Statute, as in (c). (/) Ersk. as in (d). Iff) See Milne, 10th June 1837, 15 D. 1104. 367. Superior unentered (1.) When the superior's title is incomplete, the heir it is thought may accept of a pre- cept, trusting that the superior will obtain an entry from the over-superior, and thus validate the precept ; or, following the safe course, he will charge the superior, under the statute of 1474 («), to complete his title in the superiority. (2.) If obe- dience is withheld, the heir will proceed to bring a declarator of tinsel of the superiority, in which the next superior or overlord must be called as a party, that he maybe authorised and ordain- ed to receive the pursuer as his own immediate vassal. The same course will be followed upwards to the Crown. (3.) It is incompetent for the heir to charge a disponee of the superior to complete his title, even after infeftment upon the precept in the disposition : until his infeftment is made public and the right of superiority thereby completed in his person, he is not a superior in the sense of the statute, and the heir must apply to the disponer or his heir (i). (4.) The Court 485 ^""•y «<■[ .3(i7. SUPICRIOK UNENTKIim. \ 1''"'?' ^ llcivs. ) i Clare Lonstat. have refused to delay proceedings in the process of declarator of tinsel, until the right of superiority should be determined between competitors : the vassal, so long as he remains unen- tered, cannot exercise the active rights of a proprietor, e. g. in removing tenants, or granting warrants for infeftment which are immediately valid; and decree will be pronounced, in order that the heir may obtain infeftment from the over-supe- rior (c). (5.) The mode of entry by the overlord is by pre- cept or charter supplendo vices, according as the party is an heir or disponee ; and in Crown-holdings, a warrant to the Director of Chancery to issue a precept of this sort must pro- ceed on an application to the Lord Ordinary on the Bills (d). (a) 1474, c. 57, above, p. 230. (b) Christie, 14th Dec. 1776, B. S. 5. 608; Hailes, 736. (c) Dickson, 1st July 1802, M. 15,024. (d) Cliristie ami Dickson, as above. 368. Form and effect — 1. Variatiojis inform — (1.) The term, precept of dare constat, is now applied indifferently to all precepts by subject-superiors for the infeftment of heirs ; (above, § 36G.) The ordinary style («) may be adapted to the case of an entry upon a retour of special service, by the addition of the following words : " And that the said C. is " eldest son, and nearest and lawful heir to the said B., his " father, in the foresaid lands and others, with the pertinents, " conform to special service in his favour as heir foresaid, ex- " pede before the Sheriff of the shire of D. upon the " day of and duly retoured to Chancery." (2.) Some- times it happens that the superior requires that a general ser- vice shall be cxpedcd to prove the propinquity of the heir ; but this can only be for his private satisfaction ; and as general ser- vice is no warrant for a new precept of infeftment, it will not be noticed in the precept. (3.) The entry by precept of dare constat without a service, although originally confined to the immediate descendants of the vassal last inf'eft, is now in prac- tice extended to all kinds of heirs, whether by law or provi- sion, {/iccredes nati vdfar.ti,) who are able to satisfy the supe- rior that they arc truly heirs in the lands (i) ; but it is usual for heirs of entail in all cases to cxpede a special service (c). 486 Xi;'] 368. ro„M AN. K»-ECT. \ eLTcIlLl 2. Character of the heir The special character in which the heir takes up the right ought to described with equal minuteness as in a service. But in this respect a precept of dare constat resembles the special service, in which it is suffi- cient that the heir be expressed who is truly in the right, if the character by which he is described be not wholly inconsistent with that which he truly bears, and that on the principle, that the lands and documents referred to exclude the supposition on which the objection to an erroneous designation in a gene- ral service is founded, that another may be the righteous heir (d). Thus, an objection to a precept in favour of one - described as nearest and lawful heir, but whose proper cha- racter was that of heir of provision, was repelled {e). 3. Must be in terms of the former investiture — The precept of dare constat is not a competent form for introdu- cinof a new vassal into the fee. The right must be renewed as it stood in the person of the ancestor. Thus, a precept grant- ed to the heir in liferent, and another in fee, was held to be inept as to the fiar (/). It is even questionable if an heir accepting of a precept which contains new conditions of the grant, renders such conditions effectual. Practice is against the notion, and the only case which seems to bear on the point may be considered as of doubtful authority, as apparently resting on a mere obiter dictum [g). 4. A prescriptive but not an active title — (1.) The precept of dare constat is a good prescriptive title, although not proceeding in virtue of a special service {h) ; but it has not the privilege of a service in excluding questions in re- gard to the propinquity of the heir after the lapse of twenty years. (2.) It gives an active title only in questions with the superior, who, as bound in implied warrandice from fact and deed, cannot grant a future voluntary precept for infeft- ment in the same subjects. (3.) This mode of entry, although it docs not, like special service, include a general service in the same character, nevertheless infers a universal passive title (z). 5. Does not bar special service. — It follows, from what is stated in Art. 4, that the entry by voluntary precept is in- effectual in ([uestions with parties not deriving right from the 487 ^S^l^l 3G8. .on,. AN- P...-.-Ecr. { „|;-Jlt. superior or from the heir. Although the fee therefore is full as reo-ards the superior and his successors, and those in right of the party entered, this sort of entry will not prejudice third parties claiming through the ancestor ; and of consequence it cannot har special service by another, on which the superior may be compelled to grant a precept for infeftnient. Service is a judicial means of ascertaining the righteous heir, and is not superseded by the mere private opinion and unauthorised act of the superior; (above, § 339. 2.) 6. Effect as a icarrant for infeftment — (1.) This sort of precept, as personal to the heir as such, is specially except- ed from the statute which gives effect to procuratories of resignation and precepts of saline after the death of the grantor or grantee (/<), and it therefore falls on the death of either. For a similar reason it cannot be made the subject of assignation, any more than a precept for infeftment in life- rent. (2.) In other respects the precept of dare constat does not differ from other warrants for infeftment. Thus, it is thouo-ht that a precept granted by one who is himself uninfeft is validated by the subsequent completion of his title ; (above, § 154. 2) ; and, in like manner, when the superior's title stands on a public right unconfirmed, infeftment on his precept is va- lidated by the subsequent confirmation of the public right, even after the death of the grantee (/). (a) Jurid. Styles, 1. 371-2. (6) See Crichton, 16th Jan. 1798, M. 15,115. (c) Jurid. Styles, 1. 575. (d) See Criehton, as in (?<). (e) Durham, 31st Jan. 1798, M. 15,118. (/) Finlay, 20th July 1770, and 27th Jan. 1774, M. 14,480. ((?) Sec Bell's Princ. 1821; Magis. of Edinburgh, 27th June 1717, B. S. 5. 612. (Ji) Ersk. 3. 8. 71 ; Bruce, 6th Dec. 1770, M. 10,805. (i) Stair, 3. 5. 26 ; Ersk. 3. 8. 71. But see Bell's Princ. 1823, 1914, et seq.; Farmer, March 1G83, M. 14,003; E. of Itoscbery, 16th July 1766, B. S. 5. 926-7. (A) 1693, c. 35, above, p. 100. (I) Lockhart, &c. 16th Nov. 1837, F. C, D. 369. Advant.\ges of this form of extry — (1.) Entry 488 Entry of > o^q .,.,,.,,„,,, ^^, S Precept of Heirs. 3 ( Clare Constat. by precept of dare constat, besides being the common form of the entry of an heir in lands held of a subject-superior, is often of much practical convenience in completing a progress of titles. It is frequently combined with the charter of confirma- tion. An entry by precept is competent only when the ancestor died publicly infefted ; and it often happens that a disponee dies infefted on the indefinite precept in the disposition of sale. His heir may, in these circumstances, combine the two forms, by obtaining from the superior a charter of confir- mation and 'precept of dare constat, whereby the infeftment of the ancestor is made public from its date, and the heir receives a warrant for his infeftment as heir to a vassal publicly entered. Sasine on this deed, in so far as it is a warrant for infeftment, thus completes the title of the heir. (2.) The precept of dare constat is likewise of much practical advantage where a fee has been split, and the two fees of superiority and pro- perty meet in the same person. Although a proprietor of lands cannot constitute a sub-fee in his own person («), he may, in these circumstances, grant a precept in his own favour as heir in the base fee, when acquired by succession, and being infeft on this warrant, he may consolidate the two fees by resigna- tion ad remanentiam ; (above, § 161, et seq.) (3.) It may be usefully combined with a charter of resignation or of novo- damus in the following circumstances : A. dies infeft on a char- ter by progress proceeding upon a procuratory of resignation ; but doubts are entertained as to the formality of the charter, the sasine following upon it, or the registration of the sasine. B., his heir, in order to fortify his title, may expede a general service to the deceased, and obtain a new charter from the superior upon the same procuratory, having combined with it a precept of dare constat, to meet the supposition that the infeftment of the deceased was formal and valid. The sasine proceeding upon this alternative warrant will, it is thought, effectually vest the fee in the heir. («) See Redfearn, 7th March 1816, F. C. .370. Sasine on the precept The instrument of sasine on the precept of dare constat has nothing peculiar in form. 489 ^iiS "'^f 370. sasinl: on the i-uecept. j ,^'''T "^ "'-"■''•) I (lure Cuiixtal Infeftment must be given on the precept during the joint lives of the granter and grantee («). (u) 1G93, c. 35, above, p. 100. TITLE X. TRUST-ADJUDICATION. 371. Nature and effect 1. On'f/in This kind of entry is founded on the principle introduced by the acts of 1540 and 1621 ; (above, p. 304); whereby the right of an heir unentered may be attached by a creditor-adjudger, as constructively vested in the heir by the forms prescribed by these statutes. It is said to have been invented by Sir T. Hope, and originated in the advantages resulting from a title, which saved the heir from an unlimited passive representation, at the same time that it enabled him to try the validity of competing rights maintained by other parties, and it was re- cognised as a valid mode of entry by statute. Accordingly, it is only for the purpose of acquiring a tentative title that the entry by trust-adjudication is employed. Although valid as a title to the lands, the intricacy of the forms prevent its introduction as a substitute for service, where the rijrht is unquestionable ; and where the estate is incumbered, an irre- sponsible entry is obtained by means of service cum bcnejicio inventarii. 2. Form — Adjudication in trust proceeds upon abend executed by the heir in favour of a friend, for an imaginary debt equal to or exceeding the value of the estate, who, on the other hand, grants a back-bond acknowledging a trust for be- hoof of the heir. The creditor having thus an ex facie ab- solute claim of debt, uses the procedure of charge and adju- dication prescribed by the statutes and forms, (above, § 223,) precisely as if he were a real creditor of the heir. And after obtaining and feudalising a decree of adjudication, according to the state of the title as it stood in the person of the ances- tor, he denudes of the feudal right thus acquired, by a con- veyance in favour of the heir under the obligation which he undertook bv the back-bond. The onlv objection to i-.bar,e and l-euual Jlij^lits. ) I Renunciation. tute, that intromission should extinguish not only the annual- rent of an adjudger's debt; but if amounting- to more, " shall " be ascribed in payment and satisfiiction of his principal sums " pro tanto (d)" And the rule has been extended to those modern securities, under which the creditor has a title to as- sume possession of the subjects, from their obvious analogy to adjudications, and that in a question even with singular successors ; but a creditor in possession is not bound to re- tain, and impute the amount of his super-intromissions to the principal sum : he may pay the balance, after satisfying inte- rest, to the debtor, even where the subjects are burdened with postponed securities (e). (2.) It came at an early stage in the transition of the annualrent right into the modern heri- table bond to be held as a necessary consequence of the per- sonal obligation, that sums recovered by means of dilir/ence, in like manner as those received by a possessor, by means of his intromission with the rents, were imputable towards the extinc- tion of the security, both as regards principal and interest (/). The eflfect thus given to diligence and intromission results from the nature of rights in security. Diligence or intromission being available to the creditor, as a competent mode of obtaining payment, must, on the other hand, to the extent of the sums re- ceived or recovered, relieve the debtor, who may not have it in his power to obtain a formal discharge. (3.) It may per- haps be doubted, however, if voluntary payment made towards the principal, without a registered discharge, is effectual as in a question with a singular successor. The debtor has him- self to blame that the register is not cleared of the burden, to which he has permitted a third party to acquire right in honajide. At least it does not appear that the point has been as yet determined. It is, indeed, broadly stated by Mr Erskine (^), that securities by bond, as being accessory to personal obligations, are extinguished by discharges unregis- tered, by payment or intromission ; but in the report of the case on which his opinion is rested (/<), it is expressly mentioned, that the question as to the etlect of voluntary payment was reserved ; and in a later instance, the decision may be thought to have proceeded in a considerable dejrree on specialties (/). 498 Extiactiun of ) o^c rr.„nAT vvvrr-r C Discharge and Feudal Rights. 1 375. lEUDAL EFFECT. | Renunciation. (4.) Compensation seems to be available against singular suc- cessors, on such debts only as were due prior to infeftraent (k). 3. Practical result In the state of the law alluded to in Art. 2, it is the interest of the debtor in every possible case to obtain and put on record a formal discharge and re* nunciation, not trusting to the effect of intromission, diligence, payment or compensation ; and on the other hand, a party taking an assignation to a constituted security or adjudica- tion, ought not merely to be satisfied that the burden remains on the register, but when there is any doubt, to obtain the con- currence of the debtor to the assignation. Such concurrence is not, however, an absolute protection against future exceptions, but in questions with the debtor only. Competing creditors, it is thought, may avail themselves of the plea of extinction by intromission, &c. A purchaser, again, ought in all cases to require that the register be 'formally cleared of all burdens which have been duly constituted, and are not obviously ex- tinguished by prescription. (a) Craig, 3. 1. 20-22. (h) 1617, c. 16, above, p. 121. (c) Stair, 2. 5. 15; Dunbar, 23d Nov. 1627, M. 570; Maclellan, 7th Jan. 1680, M. 571. (d) 1621, c. 6. (e) Ersk. 2. 8. 34, and 12. 37; Wishart, 4th Feb. 1671, M. 9978; Hope &c. (Heirs of Learmonth,) 2d Jan. 1705, M. 574 and 9989; Baillie, 25th Jan. 1711, M. 9990. (/) Ersk. as above ; Rankin,,8th July 1680, M. 672. (^) Ersk. 2. 8. 34. (Ji) Rankin, as in (/). (i) Macdowal, 8th June 1714, M. 576. (Jt) Rankin, as in (/) ; but see Ersk. 3. 4. 15, on authority of Leys, 18th June 1675, M. 286. 376. Form 1. Heritable bonds, Sfc. (a) — The clauses of the discharge and renunciation are artificial and intricate in a degree much greater than the case requires. From the ex- planatory statement in § 375, it seems to follow, that a simple discharge of the debt operates as an extinction of the security in a question with the debtor, and that there is a necessity for caution on the part of a singular successor only where no evidence of payment appears in the register (J)). The ordi- 499 Kxlinotion of ) 3-(j_ ^,^^^^^ j Di.char,.. an.l r eudal Kiglits. \ ( Uoiiunciation. nary style of the deed, (taking the discharge and renunciation of an heritable bond and sasine as an example,) con3ists,^r«^ of an acknowledgment and discharge of the j)rincipal sum and interest ; secondly, a renunciation in favour of the debtor, and his heirs and successors, not only of the annualrcnt but like- wise of the lands themselves; thirdly, a declaration that the annualrent is redeemed, and the lands loosed and disburden- ed of the infeftment ; fourthhj, a renunciation and release of the lands in favour of the debtor, and his heirs and successors, to be by them enjoyed and possessed free and disburdened of the security ; ffi^'^U-, clause of absolute warrandice of the dis- charge and renunciation ; sixthly, clause of registration for execution and preservation, and also in the register of sasines, &c. for publication ; lastly, testing clause. The essential part of the deed is the acknowledgment of payment, which forms the evidence of implement of the personal obligation, and consequently of the extinction of the infeftment in security. 2. Variations. — (1.) If the bond has not been feudal- ised, it is not doubted that a simple discharge is sufficient. The man of business will in all cases require re-delivery of the bond, instrument of sasine, and other title-deeds. (2.) A form, called a deed of restriction and renunciation (c), is em- ployed where part of the lands over which a security has been constituted are sold, and it is conditioned that the burden, in place of being absolutely discharged, shall remain over those subjects which continue the property of the seller. (3.) When lands so burdened are entirely disposed of, a discharge of the personal obligation in the seller's bond is sometimes granted by the creditor, he receiving a separate personal bond of cor- roboration from the purchaser. This arrangemcrit must, it is feared, be regarded as subject to considerable risk. At least it is difficult to understand that the merely accessory right should subsist after the principal branch of the deed, the personal obligation, has been discharged ; and althougli the Court are said to have in one instance approved of a si- milar arrangement^ the question does not appear to have yet occurred in a competition of real rights (r/). (4.) The form of discharge and renunciation may be employed to extinguish 2 I 2 500 Extiiu-tion of 7 o.t/> ( Discharge and Feudal Rights. S .:> / . 1 O R M . | Renunciation. the right of an assignee to an heritable security, retrocession being unnecessary for re-investing the original creditor (e). 3. Wadsets The discharge and renunciation [f) of rights of wadset does not, in the ordinary case, essentially differ from that of the heritable bond. But where the secu- rity is in the form of a /»ro/9er wadset, which is not affected by intromission, or accessory to a personal obligation, and is held by the wadsetter of the reverser's superior, a registered dis- charge and renunciation does not extinguish the feudal right, which must be reconveyed to the reverser in order that he may again enter with the superior (^). 4. Liferents, reversions, S^'c — Rights of the nature of liferent, which are not contingent on the existence of a per- sonal obligation, must be formally renounced, not merely dis- charged like sums of money (Zt). (a) Jurid. Styles, 1. 643, et seq. (h) See Wilson, 28th Feb. 1751, M. 40, 41. (c) Jurid Styles, 1. 645. (d) Jurid. Styles, 1. 646, and case of Lyell, 6th July 1816, mentioned in note. (e) Mackenzie, 23d Dec. 1837, D. (/) Jurid. Styles, 1. 638. {y) Jurid. Styles, 1. 641. {h) Jurid. Styles, 1. 648-9. 377. Registration — (1.) The statute of 1617, estabhsh- ing the register of real rights, makes mention only of " re- " versions, regresses, bands or writs for making of regresses " or reversions, assignations thereto, discharges of the same, " renunciations, wadsets and grants of redemption, and sick- " like all instruments of sasine («)." Discharges of rights of annualrent constituted in the old form and truly wadsets of a yearly sum payable out of feudal subjects, were at an early period held to be virtually embraced by the enactment ; but it is to practice alone that we are indebted for the valuable rule, that all discharges of redeemable rights must appear in the register. The rule thus established has been sanctioned by the Court ; (above, § 374-5.) (2.) Such discharges are not, however, of the nature of instruments of sasine or resig- nation ad remanentiam. They are useful merely as evidence 501 ^"'iT^rV/ \ 377. RlXnSTIlATION. \ Discharge and Feudal Rights, y I lifnuuciation. of a fact ; the consent of the party in right of the burden to its extinction, and the limitation of the period for registration to sixty days, has not been applied to renunciations of secu- rities Ijy bond and the like. The Court have in more than one instance granted special authority for their registration after the expiry of that term (i), and it is understood that in practice they are received by the keepers without any war- rant. («) 1617, c. 16, above, p. 121. lb) See E. of Glencairn, 1749, M. 13,575. TITLE III. REDEMPTION. 378. Wadsets. — Lands conveyed in wadset were, by our old law and practice, redeemable only after the using of par- ticular forms of premonition and consignation in terms of the right of reversion, when the wadsetter refused voluntarily to renounce his security («). In our present practice action of declarator is sustained without the use of these formalities (^), in which the reverser must call as parties not only the wad- setter, but those holding subaltern infeftments under him (c). The decree pronounced in that action is conditional on con- signation in terms of the reversion ; and consignation is valid when made in current gold and silver coin, although other- wise stipulated ; but the reverser may object to bank-notes as not a legal tender {d). The old forms may still be employed. (a) Ersk. 2. 8. 17, et seq. (b) T>. of Gordon, 2d March 1756, M. 16,543, B. S. 5. 383. (c) Macncil, 25th Feb. 1704, M. 16,555. (f/) 1555, c. 37 ; D. of Gordon, as in (i). 379. Bonds and adjudications — Lands burdened with voluntary securities by bond, or judicial by adjudication, may, like wadsets, be redeemed by means of declarator and consig- nation. But a refusal to accept of payment can scarcely occur in practice, unless where a question arises as to the rate of interest (a). The creditor has by the bond a certain period, usually from two to six months, as may be agreed on by the 502 I^udlTKi-b'tl ( ^^^' I^ONDS AND ADJUDICATIONS. | Redemi-tion. parties, for making arrangements to receive payment, and re- invest his money ; and when the loan is to he paid up, and premonition is given to the creditor, he is entitled to the full stipulated period. Consequently he cannot, without his own consent, be deprived of the full interest at the rate expressed in the bond, by consignation being made by the debtor before the expiry of the terra of premonition ; nor will the strongest indication by the creditor of his desire to have his money, such as the using of the diligence of poinding the ground, deprive him of his privilege (h). (a) Jurid. Styles, 1. 659. (h) Munro, 19th Jan, 1838, D. TITLE IV. AMISSION. 380. Loss OR DESTRUCTION OF TITLE-DEEDS Writinff being essential to the constitution of feudal rights, it follows that the irretrievable loss or destruction of title-deeds must ab- solutely extinguish the right which they are the means of esta- blishing. Our practice admits of a remedy for accidental amis- sion in the form of a judicial process, called an action o^ proving the tenor, which has been received from the necessity of the case, gince the accidental loss of documents, by robbery, shipwreck, or other similar misfortunes, or their destruction by fire, by accidental cancellation or obliteration, or through design on the part of those having an adverse interest, would otherwise pro- duce incalculable injury to proprietors of feudal rights. For the same reason, the evidence of witnesses must, to a great extent, be relied on in this action ; and, from the nature of the question, the proof in each individual case must, in a great degree, depend on its ow-n circumstances (a). It may not be out of place, in a work of this nature, to advert, in a general way, to some of the leading features of the forms of proceed- ing by which the tenor of feudal titles may be restored. (a) Stair, 4. 82. 1, i-t seq. ; Ersk. 4. 1. 54, et seq. 381. What writs may be restored (1.) The tenor of all writings of whatever nature, with the sole exception, per- 503 T?^'''iT^°"i? I 381. WHAT UUITS MAY HE nESTORED. i Amission. Feudal Kiglits. ) I haps, of letters of horning and their executions, seems capable of being restored by means of the process of proving the tenor, unless holograj)h writs be likewise considered as excluded. It was, indeed, at an early period doubted whether the tenor of decrees of apprising, from the strictly technical nature of the proceedings, could be made up from adminicles, however preg- nant; but this notion has not been sanctioned in recent practice, although much caution is used in allowing the tenor of judicial acts, or steps of diligence, to be established («). (2.) It was in an early case held, that the tenor of a writing alleged to have been holograph, could not be made up in an action of proving, for the reason that, in regard to holograph deeds, it is not enough to prove that writings of the purport libelled had once existed, since, with respect to a writing alleged to be in the grantor's handwriting, it behoves the party founding on it to bring proof, both that it is in the genuine handwriting of the granter, and was subscribed of the date which it bears, — evidence which, after the disappearance of the document, can- not be obtained (b). But the Court have not considered that any absolute rule exists to exclude a proof of the tenor of a deed alleged to have been holograph, and they have accord- ingly, in special circumstances, disregarded the authority of the case of Fraser (c). (a) 1579, c. 94; Ersk. 4. 1. 58; Airth, 14th March and 21st June 1707, M. 15,8)3. See 29th Nov. 1755, B. S. "s. 837; D. of Argyle, 29th June 1781, M. 15,828; Duncan, 26th June 1827, 6 S. 840; Clyne, 28th Nov. 1832, 11 S. 131; Stewart, 15th May 1835, 13 S. 765; L. Lyuedoch, 28th Jan. 1836, 14 D. 374. (l>) Fraser, 16th June 1784, M. 15,830. (c) Lillies, 4th Dec. 1832, 11 S. 160; Kobertson, 22d June 1833, F. C, 11 S. 775. 382. In what cases proving of the tenor essential. — (1.) A distinction has been drawn, although it has not been implicitly acted on, between the case of a writ necessary to found or support an action, or to establish a permanent ri'rht, and one proposed to be used merely in defence, or as pro- ving the extinction or restriction of a debt. In some in- stances the tenor of documents has accordingly been sustain- ed on pregnant evidence without a formal action of pro- ving («). (2.) The tenor of particular clauses, or parts of a 504 Kxtim-tion of ) oork C . Feudal Eights. 5 382. PROVING WHEN ESSENTIAL. J Amiss writing, accidentally, fraudulently or forcibly obliterated or destroyed, has, in like manner, been, in some instances, resto- red incidentally (b) ; and when an opposing- party can be shewn to have destroyed a document essential to the case, its terms may, in a question with him, be established incidentally by evidence of a more slender kind than would be requisite in a formal action of proving the tenor (c). (a) Maxwell, 9th Nov. 1742, M. 13,820; Synod of Merse and Teviotdale, 21st Nov. 1733, M. 15,823; Hutchison, 17th May 1823, 2 S. 318; Boyd, 5th June 1823, 2 S. 3G3. (b) Hume, 17th July 1712, M. 13,819 and 14,967 ; Ronald, 3d July 1830, 8 S. 1008. (c) See Ross, 28th Feb. 1833, 11 S. 467. 383. Procedure in proving of the tenor The writ sought to be restored must be recited in the summons of the action, and a casus amissionis, either general or special, ac- cording to the nature of the document, libelled (a). This action is competent only before the Court of Session ; and the Court have been in use to refuse a commission for taking evidence, unless where the witnesses are infirm or of great ion. &' age [h). (a) Stair, 4, 32, 3 ; Begbie, 9th March 1822, 1 S. 391. See E. of Stirling, 2d March 1833, 11 S. 306. {b) Ersk. 4. 1. 58; Balnagown, 28th Jan. 1663, M. 13,790, 343; Smart, 23d July 1673, B. S. 3. 149; Gordon, 28th Feb. 1752, M. 15,823; Scott, 24th Jan. 1787 ; Hailes, 1015; Ferrier, 14th May 1823, 2 S. 303. 384. Evidence in proving of the tenor — 1. Casus amissionis It is laid down by Stair as essential, in all cases, to libel the casus amissionis, or accident by which the writing came to be lost or destroyed. (1.) But a distinction has been drawn between the case of documents, such as charters and dispositions of heritable rights, discharges and renunciations, decrees of irritancy and the like, as well as securities by bond and infeftment, (which, having been feudalised, are in practice extinguished by formal discharge and renunciation,) as being writs which are designed to remain in the constant possession of the grantee ; and personal bonds and other obli- gations intended for a temporary purpose, which are validly extinguished by being returned to, or, as it is styled, retired Extinction of Ffudal 505 '°" °' I 384. EVIDENCE OF THE TENOR. 5 Amission. by tlic debtor on payment or performance (a). Writs of the former class (or proper feudal titles) may be restored with- out libelling or proving- a special casus a77ussio7iis, but simply that they were lost or destroyed ; whereas the loss or destruc- tion of those of the latter description must, in the general case, be expressly established, in order to overcome the presumption that the obligation was by the creditor cancelled or given back to the debtor. (2.) But this rule admits of exceptions, and the Court have sustained the tenor of a cautionary obligation without evidence of a special casus amissionis, in circumstances which excluded the presumption of its having been voluntarily re-delivered to the obligant {b). 2. Adminicles — (1.) These are not in all instances es- sential in a proving of the tenor : they will be dispensed with from the necessity of the case, since, where relative writings do not exist, the injury consequent on the loss or destruction of a deed would otherwise be without remedy ; and if the docu- ment should be a step in a progress of title-deeds, the right might thereby be extinguished (c). But in cases relating to proper feudal titles, although the tenor of particular clauses, such as a procuratory of resignation, as being customary in deeds of conveyance, or the holding of the subjects, as being shewn by the possession, may be made up on parole evidencc(r/), there would probably be found nuich difficulty in having the tenor of an entire document sustained without some adminicle in writing. (2.) Adminicles are more readily dispensed with when a presumption maintains in favour of the existence of the writ, e. g. in the case of a contract of marriage between spouses possessed of heritable property, or when fraud or violence is established against an opposing party (e). (3.) Adminicles are of various kinds : they may have express rela- tion to the terms of the writ, or be merely explanatory of its essential parts, or they may combine both these qualities. (4.) The writ, for example, may be recited in other authentic documents. Thus, the tenor of a charter was sustained without the aid of witnesses upon the adminicles of an in- strument of sasine wherein it was engrossed ad longuiu, and certain decreets bearing production of the charter and conse- quently its reception in evidence as an authentic document ( /'). Thus, also, the tenor of an instrument of sasine following 506 Exthulioiiof I 3g^_ EVIDENCE OF THE TENOR. J Amission. Feudal Iiights. J t upon a heritable bond, and of a precept of dare constat and the sasine proceeding upon it in favour of the heir of the creditor in the bond, were held to be sufficiently made up by the follovving' adminicles, viz. the heritable bond, extracts of the two sasines from the register, and a decree of poinding the ground founded upon them (^). But a sasine, or an extract of a sasine, which is a mere supplemental writ, is not of itself sufficient to establish the tenor of a disposition or other deed of conveyance, since it were easy to forge a disposition, and after infeftment on it had been completed, to destroy the false deed, and bring a proving of its tenor on the strength of the sasine [h). A sasine supported by another adminicle was, however, in the same case, sustained as sufficient to admit the case to farther probation by witnesses. In another instance, where the question occurred with the disponer's heir, the tenor of a disposition was sustained upon the adminicle of a relative deed narrating the disposition to which the granter had sub- scribed as witness, joined with the testimonies of those who had seen and read the disposition (z). (5.) An extract from a competent register would, it is thought, be sustained to prove the tenor of a deed recorded for preservation, if lost or destroy- ed in the course of being used as evidence in a court of law ; but the occurrence of such a case is by no means probable (/t). The same effect would not be due to an extract from a regis- ter of probative writs, since the principal document is given back to the party. (6.) Scrolls and other incomplete writings will, in favourable circumstances, be received, if supported by the evidence of witnesses ; but the mere draughts of deeds, and even perfect documents, prior in date to the deed sought to be restored, are admitted with great caution : preceding docu- ments can of tliemselves furnish no evidence of the essential fact that the writ alleged to have existed was truly executed (Z). (7.) Notarial copies are received as adminicles ; but they must be supported by other evidence (rn). 3. Writer and witnesses. — The purpose of proving of the tenor being not merely to restore the deed in the terms in which it originally existed, but likewise to establish its authen- ticity (w), it came after the enactment of the statute of 1681 to be made a question, whether the names and designations of the writer and witnesses were not parts of the deed essential 507 Extinction of I oo < ( Feudal Kights l ■^°'*' ^^^^lUKNCE OF THE TEN'OU. -J Amission. to be inserted in the tenor to be made up in the action. The affirmative was in more than one instance lield, on the jiround that a party whose interests were atFcctcd by the deed would be placed in a worse situation, by having to contend against the evidence of a document made up in a proving of the tenor, thanif it were an original writing, unless the writer andv.itnesses were inserted, since he would otherwise be excluded from a proof of the falsehood of the deed by the evidence of those per- sons. But this ratio was rejected in the House of Lords (o) ; and the Court have since been in use to sustain the tenor of writings which are truly shewn to have existed and been acted on as probative documents, provided no objections in point of form are adduced by the opposing party, and that the substantial parts of the writing are established ; and they have even disregarded the omission of the names of notaries signing for parties unable to write their names (/»). 4. Oath of parti/ — Proof by oath of party seems in all cases to be competent [q). (a) Stair, 4. 32. 3. 5. 6 ; Ersk. 4. 1. 54; Ogilvie, 22d Jan. 1G12, M. 15,786; Chancellor, 2d Dec. 1735; Eleh. v. Prov. of the Tenor, 2; Gordon, 21st Nov, 1749, M. 15,823, B. S. 5. 776; D. of Argylc, 29tli June 1781, M. 15,828; Moffat, 31st Jan. 1809, F. C. ; Kerr, 3d July 1830, 8 S. 1008. (Jb) Forbes's Trustees, 1st March 1827, F. C, 5 S. 497. (c) Ersk. 4. 1. 55; L. Fendraught, 19th July 1631, M. 15,788, (Seton,) B. S. 1. 218; E. March, 19th July 1743, M. 15,820; Mackenzie, 12th Dec. 1835, 14 D. 144. (d) Kay, July 1767, B. S. 5. 935. (e) Lauder, 27th May 1622, M. 15,787; Cranstoun, 22d Jan. 1674, M. 15,794. (/) Kinnier, March 1685, M. 15,804. (jr) Inglis, 26th June 1712, M. 15,819, 2744. See Melross, 24th July 1622, M. 15,787. (/i) Douglas, 15th Dec. 1702, M. 15,807. (0 Baillie, 21st Feb. 1680, M. 15,800. {k) See Macdowal, 25th Nov. 1713, B. S. 5. 98; A. and B. Feb. 1682, M. 15,802. (Z) Sec Cunningham, 9tli June 1674, M. 15,794; Ilarrowav, 12th June 1667, M. 15,791. («i) See Anderson, 27th Nov. 1675, M. 15,796. (/*) Stair, 4. 32. 8. 9. (o) Ersk. 4. 1. 57; Blackwood, 26ih Jan. 1713, IM. 15,819, Kobertson's Ap. 211. (/j) Merry, 21st Nov. 1835, 14 D. 36. {q) Stair, 4. 32. 7 ; Ersk. 4. 1 . 55. 508 Extinction of ) ^gS. DECREE OF PROVING THE TENOR. \ Amission. Feudal Rights. ) t 385. Effect of decree of troving the tenor A decree of the Court sustaining the tenor of a writ as suffi- ciently made up, gives it that effect only which was due to it in its original state ; although it is not to be doubted that a party having an adverse interest, who makes appearance in the action, will afterwards, in the general case, be excluded from excepting to the writ, either as false or informal (a). (a) Stair, Ersk. as in § 384. TITLE V. PRESCRIPTION AND CONFUSIO. 386. Prescription The effect of prescription in extin- guishing feudal rights is noticed above. (See Seller^ s Title.) 387. Confusio Feudal rights which are mere burdens on the fee, and may be extinguished by payment or intromis- sion, (above, § 375,) are necessarily extinguished confusione, when the same party becomes both debtor and creditor in the right (a). (a) Ersk. 3. 4. 23, et seq. ; Bell's Princ. 580, et seq. See Hog, 11th Dec. 1832, F. C, lis. 198, and note to Lord Medwyn's judgment. 509 CHAPTER Vlll. OF BURGAGE RIGHTS. TITLE I. ABSOLUTE CONVEYANCES. 388. Disposition of sale — 1. latvoductory remarks — (1.) Lands held by the tenure oi burgage belong to the cor- poration as a Crown vassal ; (above, § 35.) After the erec- tion of a burgh, and the first constitution of the feudal right, there is thus no room for a renewal of the investiture. The portions of the common subject parcelled out to the indi- vidual burgesses arc transmissible, indeed, to heirs and singu- lar successors, but the subject as a whole never changes its owner. Nor is it consistent with the nature of burgage con- veyancing, as before briefly defined, that it should contain deeds of constitution. The property of the individual bur- gesses was not originally acquired by charter but by resigna- tion, the council, as representing the corporation or commu- nity, being proprietors but not superiors of the common sub- ject ; and in parcelling it out originally, or disposing at the present day of such portions of it as may come into their hands, they act as disponers in the ordinary sense of the term, and grant warrant for resignation in the hands of the ma- gistrates as the Queen's bailies. The magistrates of the burtrh bear that character, not as commissioners directly ap- pointed by the Sovereign, but under an express statute (a), and thus exclude the ordinary officers of the Crown. A title by resignation in the hands of the Crown is accordingly inept in competition with a right completed in the ordinary burgage form {h). (2.) The form of charter has been held inapplicable to this kind of holding. It is true that the town- council have, by inveterate usage, confirmed by decisions of the Court and the opinions of our institutional writers, and 010 iSr I 3»8- "'^POMTION OI- SALE. { ^ j;^-'- .. recognised by statute, acquired the power of granting the common property mfev-farm ; but such holding is not presu- med, and must not only be expressed, but constituted with suffi- cient formality to exclude objections, which, if sustained, would throw back the subject to its original tenure (e). 2. Foj^m The disposition of sale differs from the same deed, in the ordinary holdings of feu and blench, in having a procuratory of resignation as the only feudal clause. It war- rants resignation in the hands of the bailies of the burgh, as in the hands of her Majesty, in favour of and for new infeft- ment to the purchaser. In other respects reference is made to the ordinary form of the disposition of sale. (a) 1567, c. 27. Fovsameikle as the great hurt done of before within burgh, by giving of sasings privatlie, without anie bailie, and ane common clerk of burgh, quhairthrow our Soveraine Lordis liegis may be defrauded greatlie. Thebefore it is STATUTE and ordained be our Soveraine Lord, with advise and consent of my Lord Regent and three Estaites of this present Parliament, that na sasing be uiven within burgh of ony maner of land, or tenement within the samin, in ony time cumming, bot be ane of the baillies of the burgh and the common clerke thereof. And gif ony sasing beis utherwayes given heirafter to be null, and of nane avail, force, nor effect. (t) C, of Kincardine, Feb. 1686, M. 6894. (c) Dawson, 15th June 1824, F. C, 3 S. 136 ; remitted, 22d May 1826, 2 W. S. 230; reconsidered, 14th Nov. 1827, F. C, 6 S. 19; affirmed 31st March 1830, 4 "W. S. 81. See Davie, 2d June 1814, F. C. ; Dixon, 1st Feb. 1823', F. C, 2 S. 176. This case (see Bell's Princ. 847,) is not to be relied on. 389. Resignation and sasine — 1. Introductory remarks. (1.) This instrument (a), which combines the effects of the instrument of resignation and the charter of resignation and sasine of ordinary conveyancing, bears a striking resemblance to the ancient breve testatum. In royal burghs the represen- tatives of the Sovereign, who is the superior, being always pre- sent, the reasons which induced the separation of the forms • used in other holdings have had no place in burgage-holding. The parties or their procurators appear before one of the bailies of the burgh, on the ground of the subjects contained in the conveyance ; and the ceremony is begun and concluded on one and the same occasion, and certified in a single deed or instrument prepared and attested by the town or common 511 kXI 389. RESIGNATION AND SASINE. \c!:;l::yZs. clerk. The remarkable convenience and simplicity of burg-age conveyancing: is well exemplified by this form. (2.) The statute (b), which prescribes the mode of giving infeftment within burgh, ordains that none shall officiate except the bailies and the common clerk ; but it is understood that in practice the provost occasionally officiates. Such a practice ought to be avoided, as the performance of the duty by the provost seems in one instance to have been supported, on the ground only that the burgh was without bailies (c). A sasine taken during the Usurpation, where the Sheriff and Sheriff-clerk officiated in room of the bailies and town-clerk, who were ex- cluded by refusing the tender, was sustained as having been warranted by a commission from the Judges (d). (3.) The burgh is not entitled to any composition for giving infeftment to disponces, adjudgers or purchasers at judicial sales {e). 2. Cercmonij (1.) The disponer or his procurator appears on the ground of the subjects, attended by one of the bailies, the town-clerk, and two witnesses. The warrant is published to the witnesses and others present, by the town- clerk officiating as notary ; the procurator makes resignation in the hands of the magistrate, as for her Majesty, by the symbol of a staff and baton — an essential solemnity (/). Then the magistrate delivers earth and stone of tbe ground of the subjects to the procurator for the disponee, (who may be the person officiating in the same character for the disponer,) and the latter takes instruments in the hands of the notary, and calls the attention of the witnesses to the fact. (2.) Where the town-clerk is proprietor of subjects within burgh, the Court will authorise the Sheriff-clerk of the county in which the burgh is situated to officiate for him in infeftments in his own favour, or proceeding on his warrants {(f)^ 3. Instrument (1.) The notarial instrument of resig- nation and sasine {h) records the ceremony, and is attested in like manner as the ordinary instrument of sasine, to which it is in all respects analogous. It is authenticated by the town-clerk, who must therefore hold the office of notary- public ; and in the doquet he describes himself as notarius publicus et clericus communis dicli bmr/i de 512 iTiSr \ 389. RESIGNATION AND SASINE. { Con'etnl. (2.) An important variation occurs in this instrument when employed to record sasine propriis manibus by a husband to his wife. It is closed by a testing clause in the ordinary form, and subscribed by the husband ; and as sasine is given at one and the same time both to the husband and wife, the in- strument combines resignation with sasine to each of the spouses (/). 4. Bcgistration (1.) Burgage rights were specially excepted from the operation of the statute of 1617 (A). But, on the ground that " there is fully the like reason and bene- " fite that the foresaid statute should extend to the whole " kingdom, as well to burgh as landward," the provisions of that enactment were, at a later period (Z), made applicable to sasines of tenements holding in burgage, reversions, regresses, bonds or writs for making reversions or regresses, assigna- tions thereto, discharges thereof, renunciations of wadsets and grants of redemption of such tenements ; and it is provided by this latter statute, that the town-clerk shall keep a regis- ter depending only on the magistrates of the burgh, in which these writs shall be inserted within threescore days after their respective dates, under the like sanction as in the case of ordinary sasines. The books of register are now issued to the town-clerks by the clerk-register ; but they remain, after being filled up, in the custody of the former. (2.) A practice having prevailed in some burghs of abbreviating the notary's doquet in its transcription into the register, an act has recently been passed, which declares sasines so erroneously registered to be for the future null in questions with third parties; but validates those registered prior to the date of the enactment (m). (3.) The statute of 1681 mentions sasines, reversions, &c. of tenements ivitlim huryk royal, or liberties or freedoms thereof holding burgage. The question, therefore, in what register a real right ought to be recorded, depends upon the nature of the holding ; and thus, where portions of the common sub- ject have been granted in feu-farm, the sasines will be entered in the ordinary register — not the register for the burgh. As above expressed, burgage is presumed when the subjects are part of the original common property, and if the tenure be r)i3 uXl ^^^- «Es^^NATi()N AND sAsiNE. \ c,^:;;.;!;;;:^,. doubtful, registration ought to be made both in the burgh register and in the ordinary general or particular register. (a) Jurid. Styles, 1. 608. (6) 1567, c. 27, above, p. 510. (c) Thomson, 3cl July 1662, M. 6892. This case is differently read both by Ersk. (2. 3. 41,) and Bell, (Pr. 840.) ((/) Lockhart, July 1662, B. S. 1. 482. (e) Hay, 22d July 1634, M. 15,031-41. (/) A. S. 11th Feb. 1708; Carnegy, 2d Dec. 1729, M. 14,316. Iff) Duff, 16th Jan. 1823, 2 S. 117. (A) See note (a). (i) Jurid. Styles, 1. 610. (A) 1617, c. 16, above, p. 121. (/) 1681, c. 11. OoR Sovereign Lord Considering the great security that this kingdom enjoys by the public register of seisings and reversions, conform to the 16th Act of the 22d Parliament of King James the Sixth, holden in anno 1617. And that there is fully the like reason andbenefito that the foresaid sta- tute should extend to the whole kingdom, as well to burgh as landward. There- fore his oNIajcsty, with consent of his Estates of Parliament, statutes and ORDAINS, that in time coming all instruments of seisin of tenements within burghs royal, or liberties or freedoms thereof holding in burgage, and all rever- sions, regresses, bonds, or writs for making reversions, or regresses, assignations thereto, discharges thereof, renunciations of wadsets, and grants of redemption of the said tenements within burgh or the liberties or freedoms thereof holding burgage, shall be insert in the town-clerk's books of the several burghs respec- tive, within threescore days after the date of the same, excepting reversions incorporat in the body of the right, and that the town-clerk shall keep a several book therefor, depending only upon the magistrates of the burgh without neces- sity of any warrand from the clerk of register, and minut books of the same, to be quarterly compared and signed by the Provost and Bailies of the several burghs. It is always declared that it shall not be necessary to insert any bands or writs for making of reversions (or regresses) unless seisin pass in favour of the parties makers of the said bands and writs : In the which case it is ordained that the same shall be insert within sixty days after the date of the seising. The extract out of which register shall make faith in all cases, except where the writs so insert are offered to be improven : And if it happen any of the said writs, which are appointed to be insert as said is, not to be duely insert within the said space of sixty days ; then and in that case, his Majesty, with advice and consent foresaid, decerns the same to make no faith in judg- ment be way of action or exception, in prejudice of a third party, who hath acquired a perfect and lawful right to the said tenements, but prejudice always to them to use the saids writs against the parties makers thereof, their heirs and successors. And it is hereby declared that there shall be nothing payed to the town-clerks for the registration of the saids scasings, but for any pos- terior extracts, they shall have the half of the rates prescribed by the Act of Parliament for extracts out of the registers of seisings in the particular shires. And for registrating in the town's books of reversions, assignations thereto, or 2 K 514 ^^l 389. HESIGNATION AND SASINE. [ ^J^i^::^:,,, discharges thereof, renunciations, and grants of redemption of wadsets, which were not in use to be registrat before in the town's books, that they shall have the half of the rates prescribed by the Act of Parliament, for registration and extracting the same as said is. (m) 10 Geo. IV. c. 19. TITLE II. REDEEMABLE RIGHTS. 390. Heritable securities — 1. Heritable bonds, Sfc. — These, when completed in the burgage form, do not differ in any essential particulars from bonds in the ordinary holdings, except in having a procuratory of resignation as the only feu- dal clause (a). The right is perfected by instrument of re- signation and sasine registered in the burgh register. Such rights may, it would seem, be competently granted to hold base of the debtor (b) ; but this form is not usual in practice. 2. Adjudications. — Judicial securities are perfected by instrument of adjudication and sasine if the debtor be infeft, and by instrument of adjudication, resignation and sasine when he has a personal right only. 3. Ground-annuals This form of constituting a bur- den on heritage is peculiarly adapted to burgage-holding, which does not admit of sub-infeudation. It is frequent in the city of Glasgow. The forms do not substantially differ from those above described; (§ 137.) 4. Burdens by jedge and warrant — These are imposed by judicial process before the Guild court (c). (a) Jurid. Styles, 1. 316, 614. {h) Bennet, 5th July 1711, M. 6895. (c) See Jurid. Styles, 1 . 622, et seq. TITLE III. ENTRY OF HEIRS, 391. Cognition and sasine. — 1. Ceremony. — The sim- plicity of the burgal forms is in no respect more remarkable than in the entry of heirs. In many of the more ancient burghs the ceremony still maintains of entry by cognition and hasp and staple^ in subjects in which the ancestor died vested 515 ""'■f,^*^ J 301. COGNITION AND SASINE. ^"'7 ''^ liights. ) ( Ilcirs. and seised, which is parallel to that by precept of dare constat and infeftment, in the common holdings, and is performed thus : One of the bailies of the burgh, on a claim by the heir, proceeds to the subjects in which entry is to be given, accompanied by the claimant or his procurator, the town- clerk and two witnesses : he examines on oath two or more witnesses in regard to the propinquity of the heir, and if satisfied of his right and title, grants immediate entry and investiture by giving the claimant or his procurator earth and stone of the subjects, and the hasp and staple of the door of the principal dwelling-house, who thereupon assumes actual possession, after the old Roman form, by entering the house and shutting the door ; (above, G2. 5.) The ceremony ends by his taking instruments in the hands of the town-clerk, and calling the attention of the witnesses to the fact. 2. Instrument. — (I.) The certificate of this primitive ceremony is called an instrument of cognition and sasine (a). It resembles other burgage sasines in form, and must be re- corded in the burgh register within the statutory period of sixty days. (2.) Where the heir, prior to his entry, has granted a conveyance of the subjects, cognition and sasine to the disponer, and resignation and sasine in favour of the dis- ponee, may be combined in one and the same instrument {h). 3. Precept of dare constat. — This form of entry has been sustained as competent, but in circumstances which do not appear to give the case much weight as a precedent (c). It is understood to be unknown in modern practice. (a) Jiirid. Styles, 1. 393. (Jb) Jurid. Styles, 1 . 594. (c) Lofkhart, July 1GG2, B. S. 1. 482. 392. Special SERVICE — (I.) Service in special (sometimes, as in Glasgow, called service hi/ ward of court,) is customary in those burghs where the entry by cognition and sasine does not prevail, or when doubts exist in regard to the propinquity of the claimant, or in the case of a refusal on the part of the bailies to give investiture to the heir. Under this form the bailies may be charged to give infeftment [a). (2.) Special 2 K 2 51G '^^;\ .392. SPECIAL SERVICE. | ^^s" service takes place on a claim presented by tlie lieir in the burgh court, the form of which varies in different burghs ; but in all the service proceeds w itliout the authority of a brieve from Chancery. The statement in the claim is more or less simple. Ordinarily, it sets forth that the ancestor died at the faith and peace of the Queen, vested and seised in certain subjects, the description of which is taken from the last investiture ; tliat the subjects are held in free burgage ; and that the claimant stands in a certain degree of relationship, in virtue 01 which he is nearest and lawful heir to the deceased. The claim concludes with a prayer for service and cognition (b). It is remitted by the court to a jury, who, on the usual and lecal evidence, serve and cognosce the claimant accordingly, and to their verdict the court interpones its authority. On this sentence a decree or precept is extracted, on the autho- rity of which the bailies may be charged on letters of horn- ing to give investiture to the heir (c). (3.) Competition for the character of heir is unfrequent, destinations of burgage subjects being rare, and of no great length or intricacy. The heir-at-law is seldom doubtful. In cases of competition the ordinary rules of procedure on brieves would probably apply, in so far as consistent with the nature of the holding, and the constitution of the court. It does not appear that the Court of Session has any statutory jurisdiction in burgal services. (o) Burgess of Stirling, 15th July 1(]08, M. 15,021 ; Gordon, 13th Dec. 1738, M. 15,022. (b) Jurid. Styles, 1. 598. (e) Gordon, as in ("). 393. General service Tliis kind of service proceeds in virtue of a brieve from Chancery, a form which is assumed to have ])een approved of by the Court in the only case where the question seems to have occurred, although no mention is made in the report of the necessity of a brieve, and a formal determination of the point was not called for (a). It may perhaps Ijc considered an anomaly that the bailies, who have the o-reatcr power of serving heirs in special, may not exercise the lesser authority, of trying a part of the heads of the claim 517 rSH 393. o.n.kal service. j'^'S,"' of special service in the form of a claim of g-cneral service. The procedm-e on the hrieve is in the ordinary form of general service ; (ahove, 353 et seq.) ; and the heir obtains infeftment in virtue of the retour upon the personal right which belonged to his ancestor. («) Cummiiig's Creditors, 4th Ucc. 1783, M. 14,44G. ADDENDA. (§ 51, p. 76.) 7. Provision for enforcing the infeftment of the vassal Circumstances may occur, in which it is for the interest of the superior that the vassal shall complete his right by immediate infeftment. It seems a legitimate exer- cise of the rights of the superior, to stipulate for such infeft- ment, as he thus merely insuj-es the completion of the agree- ment with his intended vassal. The object may perhaps be attained by a clause fortified by an irritant declaration, that any conveyance of the lands and of the precept of sasine in the charter shall be void, or by the use of the words, " excluding " assignees before infefment." But the mere omission of the term assignees w^ould not, it is thought, produce the intended effect; (above, § 46.) Nor is it in the power of the supe- rior to withhold delivery of the charter until he shall him- self have completed the investiture by infefting the vassal, or to insist that the infeftment shall be expeded by his own man of business {a). But this may be made matter of express stipu- lation, as between the superior and vassal. (a) Stewart, 12th Nov. 1794, M. 15,027. (§ 56, p. %^.) To note(//) add Wallace, 26th Feb. 1835, 13 S. 564. (§ 60, p. 96.) The superior is not liable in payment of parochial burdens unless it is so stipulated («). The ques- tion, as to the superior's liability in a share of proper public burdens, corresponding to his interest in the subject, can 518 ADDENDA. scarcely occur under the existing practice, which is uniformly to declare an express exemption in the charter or feu-contract. (a) Dundas, 2d July 1778, M. 8511 ; Murray, 20th Feb. 1794, M. 15,092. (§ 74, p. HI.) To clause in note (a) add, " and that by " delivery to the said D. as procurator foresaid, of earth and " stone of the ground of the said lands, [other symbols,) with " all other symbols usual and requisite, after the form and " tenor of the said charter and precept of sasine in all points." (§ 148. 2, p. 215.) The rent payable at the date of the entry is the rule («). (o) Heriot's Hospital, 27th July 1715, M. 7998. (§ 149. 2, p. 219.) See, in regard to the confirmation of the sasine, Adam, 12th June 1810, F. C. APPEJN^DIX. No. I. Dispositive Clause of Disposition of Sale containing a Ground- annual. (See p. 201.) Sell alienate and dispone from me and my heirs and succes- sors to and in favour of the said B. his heirs and assignees whomso- ever heritably and irredeemably all and whole {the subjects) to- gether with all right title and interest which I the said A. my prede- cessors and authors had have or can any ways claim or pretend thereto in all time coming But always with and under the burden of pay- ment by the said B. and his foresaids to me the said A. and my foresaids of the ground-rent or ground-annual of £. yearly and that at two terms in the year Whitsunday and Martinmas by equal portions begin- ning the first term's payment at the term of Whitsunday next for the half year preceding, the next term's payment at Martinmas following and so forth half yearly thereafter with the interest of the said ground-rents from and after the respective terms of payment during the not payment and a fifth part more of each termly payment of liquidate penalty in case of failure in the punctual payment thereof which ground-rent or ground-annual with the interest and penalties efteiring thereto as afore- said is hereby declared to be a real burden on the sul)jects hereby dis- poned and as such is appointed to be engrossed in the infeftments to follow hereupon and in all subsequent charters precepts deeds of trans- mission and infeftments of the same. And declaring as it is hereby PROVIDED and DECLARED that the ground-rent or ground-anmial here- by stipulated with interest and penalties efieiring thereto as aforesaid shall be leviable bv me and my foresaids from the proprietors tenants and occuj)iers of the subjects hereby disjwned by process of poinding- the ground maills and duties or in such other way and manner as real burdens are leviable by the existing- laws of the realm for the time being-, and that in case the said B. or his foresaids shall allow two years' ground-rent to run into a third unpaid they shall ipso facto forfeit aniit and lose all right to the subjects hereby dis])oned and this present right and disposition thereof and all that has followed or is competent to follow hereon and all future transmissions or renewals of the same shall thereby become void and null but the above irritancy shall al- ways be purgcable before declarator or at the bar. And also de- claring as It is hereby PROVIDED and declared that it shall not be lawful to or in the power of the said B. or his foresaids to sell alienate or dispone the subjects above described freed and disburdened of the 520 APPENDIX. said ground-rent or ground-anmiul and that any charter or instrument of sasine to follow hereon or any future precept charter deed of trans- mission or instrument of sasine of the foresaid subjects which shall not contain and recite the said real burden shall not only be null and void, but the said B. or other person who shall contravene the fore- said provision and declaration shall ipso facto forfeit amit and lose all right and title to the foresaid subjects and the same shall devolve and return to me or my foresaids without our incurring any obligation to restore the price or pay the value thereof. (It is to he observed, that the above irritancies will not be effectual against singular succes- sors unless inserted in the sasines of the subjects.) No. II. Propositions by her Majesty's Commissioners on the subject of Conveyancing. Propositions 1. That the casualty of relief and other casualties of superiority, as well as the superior's right to composition upon the entry of singular successors, should in future be discharged, and either commuted for an annual payment, or purchased by the vassal in man- ner after stated. Where the casualties and composition are commuted for an annual payment, the tenure, if blench, should be converted into feu, the annual payment forming the reddendo or feu-duty ; and if the holding is already feu, the annual payment should be added to the feu-duty, and be in all respects secured and recoverable as such. 2. That this commutation or purchase should be competent on the requisition either of the superior or the vassal ; that where the annual payment, (if the casualties and composition were commuted for an annual payment,) would not, in cases of feu-farm, exceed a certain proportion, say one-fifth of the feu-duty already payable, the conver- sion should be by purchase only ; that it should, in like manner, be by purchase only in all cases of blench-holding, where the casualties are untaxed, or not taxed to a higher amount than one year's rent of the land ; but that in all other cases the vassal should not be compellable to purchase, though compellable to convert into an annual payment, and to change the holding, or add to the feu-duty. 3. That in order to facilitate this change, and following the pre- cedent of the 20 Geo. II. c. 50, the Judges of the Court of Session should be authorised and required, on the application of the Lord Advocate, whose duty it should be to make such application, to take into consideration the rate and manner at which this conversion should be made, and whether for a price or for an annual payment, and gene- rally to lay down, by Act of Sederunt, the rules by which the parties should settle and adjust their respective interests ; and for that pur- pose, the Lord Advocate should be authorised and required to lay be- fore their Lordships such information as they may require, to enable them to determine in the matter ; or otherwise, a Board or Com- mission should be appointed for the discharge of these duties. Al TKNDIX. 521 4. That the rules prescribed in such Act of Sederunt, or in any regulations issued by the said Board or Commission, if such be ap- pointed, should be laid before both Houses of Parliament, and three months thereafter should come into operation, and form the ground upon which the superiors and vassals, or parties interested, should settle and adjust the amount of the said price or of the said annual payment ; and in case of any difference arising in any particular case, the Judges of the Court of Session should be authorised and required, upon a summary application, to hear parties, and to determine the amount of the price or annual payment, as the case may be, having regard to the rules laid down by the said Act of Sederunt, or by the said Board or Commission, but with power to award expenses. 5. That in all cases in which the conversion of the casualties and composition is made Ijy purchase, a deed of discharge by the superior, specifying the lands, acknowledging receipt of the price, and dischar- ging his right to the casualties and composition, should, when duly re- corded in the Register of Sasines, operate a disencumbrance of the lands from all casualties and composition in future, as fully and effec- tually as if these had been specially renounced in the original grant to the vassal. The expenses of this deed should be paid by the vassal. 6. Expenses of the deed to he laid on the vassal — That, in like manner, where the casualties and composition are commuted for an annual payment, a charter of novodamus should be granted by the superior, discharging the said casualties and composition, and stating as the reddendo the said annual payment, or, where the holding was already feu, the original feu-duty, and said annual payment, in cuinulo. And sasine on such charter of novodamus, duly taken and recorded, should be held to disencumber the lands of said casualties and com- position, as effectually as if these had been specially renounced in the original grant to the vassal, and to impose the reddendo, or additional reddendo, as effectually as if such payment, or additional payment, had been contained in the original grant. The expense of the char- ter and sasine should be defrayed by the vassal. 7. That the said conversion, whether for a price or for an annual payment, should be effectual if made with the party who has right to the first estate of superiority in order which is not defeasible at the will of the vassal ; and such conversion, and such deed of discharge, or such charter of novodamus and sasine, should be as effectual, though the said party having right to the superiority should not be infeft, as if he had been infeft and feudally vested with "the superiority. 8. That after the lapse often years, "from the system coming into operation, the casualties and right of composition should be ipso facto extinguished and discharged, reserving to the superior thereafter a personal action oidy against the vassal then infeft, and his heirs and representatives, for the price of the casualties and composition. In com|)uting the said ten years, the minority, or the period during which either party shall not be valens a>j[cre, shall be deducted. 9. That where a party has granted a disposition with a double manner of holding, and indefinite precept, or with a holding simply n me, or silent as to the manner of holding, sasine I'V the dispo- 522 ArPENDix. nee, or his lieirs or assignee, duly taken hereafter and recorded, should be held and construed to be, and should in all respects operate, as a sasine duly confirmed by the superior of the disponer ; or in the event of there being an estate or estates of mid-superiority, defeasible at the will of the disponee, then it should be held and construed to be, and should in all respects operate, as a sasine duly confirmed by the first superior in order, whose estate of superiority is not defea- sible, or whose vassal first granted a disposition with a double man- ner of holding, or with a holding simply a me, or silent as regards the holding ; and it should be no objection to the sasine so taken, or in any degree affect its validity, that the titles of the superior, whose confirmation is thus implied, were not de facto completed. Provision must be made under this and some of the following heads for the protection of third parties, who, before the recording of the sasine so held to be confirmed, may have acquired rights that would have pre- vented, as media impedimenta, the operation of confirmation. 1 0. That hereafter where a party has died infeft, the heir having been specially served, should be entitled, upon the extract of the judg- ment pronounced in his service, to take and record sasine without any precept of dare constat, or other warrant from the superior; and such sasine being duly taken and recorded, should be construed and be held to be, and should in all respects operate as a sasine taken upon precept from the superior ; or in the event of there being an estate or estates of mid-superiority defeasible at the will of the heir, it should be held and construed to be, and should, in all respects, operate as a sasine taken upon charter of confirmation and precept from the first superior in order, whose estate of superiority is not so defeasible, or whose vassal first granted a disposition with a double manner of hold- ing, or with a holding simply a me, or silent as regards the holding ; and it should be no objection to the sasine so taken, or in any degree affect its validity, that the titles of the superior, whose precept, or con- firmation and precept, are thus implied, had not been de facto com- pleted. 11. That, in like manner, sasine on decree of adjudication, without direct warrant from the superior, by an adjudger, or his heir or assig- nee, duly taken hereafter and recorded, should be held and construed to be, and should in all respects operate as a sasine taken upon the precept of the superior, against whom the said decree warranted charge of horning ; and in the event of there being an estate or estates of mid-superiority defeasible at the will of the adjudger, then it should be held and construed to be, and should in all respects operate as a sasine, confirmed as aforesaid. 12. That there should be, nevertheless, reserved to the said supe- rior, whose precept, or confirmation and precept, are thus implied, a right to challenge the said sasine by reduction or excej^tion, as the case may be, upon any ground or reason that would have entitled him to object to a charter of resignation, if tendered in the same terms and upon the same conditions as expressed in the sasine, or to the sasine itself, as inconsistent with, or contrary to, its warrant ; such challenge, however, being competent to the superior alone, and in so Al'l'ENDlX. r)2;j fur only as his rights or interests are concerned : And it should be further declared, that the sasinc so taken and recorded should in no degree aftect the reddendo payable to the superior under the original grant, or in consequence of the conversion of the casualties of supe- riority and composition, or the remedies by which the same may be enforced ; but reserving to the vassal all pleas of prescription that would, by law, have been competent to him if he had held base by a sasine, in the same terms taken on a precept granted by the vassal last infeft, and to the superior his defences, as accords. 13. That the vassal, or his heir or disponee, shall be obliged, on requisition of the superior, to submit his title-deeds of the estate held of the superior, from the date of the last entry, to the inspection of the superior or his agent ; and, in the event of their not having been previously exhibited to the said superior, and of the said vassal, his heir or disponee failing to do so, upon the requisition of the superior, the superior should be entitled to bring a summary action before the Sheriff of the county, concluding for exhibition and inspection of the said title-deeds ; in which action the said vassal, or his heir or dis- ponee, should be obliged to produce and exhibit upon oath, with power to the Sheriff to award costs in the said action. 14. That in the event of sasine being put upon record by the heir or disponee or creditor adjudger of the vassal, in such terms as the superior was not compellable to warrant, it should be competent to the said superior to require the party so erroneously or improperly infeft to take a charter of novudamus, in terms consistent with the superior's right and interest ; and sasine upon that charter, duly taken and recorded, should thereafter form the proper title to the estate, and qualify the rights of all parties acquiring any personal or real right thereto. 15. That in all cases where the vassal has put upon record a sasine inconsistent with the superior's right and interest, it should be com- petent for the superior to bring an action of reduction and declarator, or of declarator, concluding for reduction, if necessary, in so far as concerned the superior's right and interest, of the erroneous sasine, and for declarator of the special terms in which such sasine ought to have been taken and recorded ; and if the superior should obtain de- cree in the said action, and recoi'd the said decree in the Register of Sasines, the said sasine so taken should be held and construed as if they had been taken originally in terms of the said decree, and the rights and interests of all parties, arising out of, or depending on, the said sasine, be regulated and determined accordingly. The superior, if he obtains decree in terms of the libel in such action of declarator, or reduction and declarator, should be entitled to costs of suit, as be- tween agent and client, without any power in the Court to modify the same, unless the sasine, previous to its being taken and recorded, had been tendered to the superior or his agent for revision, and revision had been refused, or unless the vassal had offered to take a new title by charter of novadcnniis, and sasine on that charter, \\hcre such charter and sasine would have been a competent and sufficient mode of amending and reforming the title, or, unless the superior had in- 524 APPENDIX. sisted upon conditions being- inserted or omitted contrary to the vas- sal's right and interest ; in all which cases such costs should not he g^iven of course, hut the question of expenses should he left to the discretion of the Court : That, in the event of the vassal obtaining absolvitor from such action, on the ground that the title, as completed, contained nothing to which the superior had right to object, the vas- sal should, in like manner, be entitled to costs of suit, as between agent and client, without any power in the Court to modify the same. 1 G. That in the event of the service of the heir being sustained as a warrant of infeftment, without the intervention of the superior, the superior should be compellable to confirm the entry of the heir by charter of confirmation or indorsation, acknowledging and recognising the party to be his vassal, on the same terms and conditions that he is now compellable to grant a precept of dare constat. 17. That hereafter it should be declared unnecessary that any dis- position should contain obligation to infeft, procuratory of resignation, or precept of sasine, hut that a disposition of the lands, without pro- curatory or precept, should form of itself a warrant for infefting the nominatim disponee ; and such disposition, with general service or assignation, should, in like manner, warrant infeftment in favour of the heir or assignee of the disponee, precisely as if it had contained procuratory and precept, the disposition being duly narrated in the instrument of sasine, and the service or assignation in the case of the heir or assignee, as now required by the Statute 1693, c. 35. 18. That in like manner every disposition should be held to imply an assignation to maills and duties from the date of entry, as also an assignation to writs and evidents, and an obligation to make them forthcoming ; as also a clause in conformity to such warrandice as the law in the circumstances would infer. 1 9. That it should nevertheless be competent to the parties to com- plete their titles by precept oi clave constat, or charter of adjudication, resignation, confirmation, or otherwise, to the same purpose and eflfect, and in the same manner, as is now competent and in use. 20. That the superior hereafter shouM be compellable to enter his vassal by confirmation, in the same manner, and by the same process, by which he is now compellable to give entry by charter of resignation ; and that an indorsation on the disposition or deed confirmed, duly subscribed by the superior, containing an acknowledgment or recog- nition that the party is his vassal duly entered, should be, to all in- tents and purposes, equivalent to an entry by charter of confirmation, and that the superior should be compellable, if required, to grant confirmation by such indorsation. The indorsation should be held to imply, on the part of the superior, that the whole demands pre- viously competent against the vassal, in respect of his estate of supe- riority, have been satisfied, reserving to the superior to refuse confir- mation by charter or indorsation till he is paid all his just claims. 21. That hereafter sasine, upon a conveyance a me, though not confirmed, should be as valid and efTectual against all third parties, the superior only excepted, as if the instrument of sasine had pro- ceeded on a disposition a me vel tie me ; declaring, however, that no Al'PENUIX. 525 question of coinpcliliuii, ulierciii the ground ol' claim liail Lecn consti- tuted, prior to the enactment coming- into force, should be aflfecterl !)v that enactment ; but that, in all such cases, the sasine should be dealt with as a sasine I'cquiring confirmation in order to its validity. 22. That confirmation, whether by charter or indorsation, granted by the superior, whose estate is the first in order, that is not defea- sible by the vassal, holding by progress, or successive dispositions a me, or a me and de vie, should be held to extinguish all the inter- mediate defeasible superiorities, without the necessity of sjiecially con- firming them, but simply by the acknowledgment or recognition of the party as vassal, and that the said superior, whose estate is the first in order, not defeasible, should be compellable to grant entry by con- firmation, as if he had been the immediate superior of the last dis- poner. 23. That in the event of the superior being unknown or unable to act, by not having made up his titles, or otherwise, as also in the event of his wilfully refusing to act, it should be competent to the party requiring the superior's concurrence to make application to the Sheriff', or Court of Session, who should be empowered, after due notice of the application, and upon production by the applicant of the last charter granted by the superior, or the last deeds confirmed by the superior, to act for the superior, ^^ro Iiac vice, and to grant the entry required in terms of the last investiture. This, and the two preceding propositions, will not be necessary, if the 10th proposition, and those immediately following it, shall be adopted. 24. That when the interests of a superior in his vassal's estate shall consist merely of proper feudal casualties, or annual payments under a certain yearly value, with reference to the yearly value of the vassal's estate, or when a superior, who has interests exceeding such value, shall refuse to grant his vassal an entry, in such terms as may be lawfully demanded, it shall be competent to the vassal to require the superior to sell and renounce his right for a price to be offered ; and in case the superior shall agree to sell his estate of su- periority at the price offered, the same, ujion the superior's deed of sale or renunciation being recorded in the Kegi&ter of Sasines, shall be ipso facto extinguished, whether the superior shall have completed his titles or not, and the vassal shall hold of the over-superior in the same way and manner, to the same effect, and under the same condi- tions, as the superior held his sujieriority. And in case the superior shall refuse to sell at the price offered, the Sheriff, or Court of Ses- sion, should be authorised, on a summary a])plication at the vassal's instance, to fix the value of the superior's interests in the vassal's estate ; and on the same being paid or consigned by order of the Court, the Court shall pronounce decreet of extinction, which bein-^ recorded in the Register of Sasines, shall have the same effect as a voluntary dee.^ Kight to an entry on paying a year's main, ib. Indirect modes of alienation, ib. Public and pr irate itifeftments, 146. Effect of possession, ib. Private infeft- ments called base rights, 147. Entry by resignation, general nature of, ib. Superior's consent essential, 148. Is the genuine feudal form of entry, ib. Union of the charters a vie and de me, and the proeuratory of resignation, ib. Effect produced by the register of real rights, 149. Modem form of the disposition, 150. Precept indefinite, ib. Holding alternative, ib. Precepts of sasine and procuratories of resignation made per- manent, 151. Right to demand an entry introduced by statute, ib. ^ Disposition of sale, 187. Clauses, ib. Narratii-e clause, 188. Designation of the seller, ib. Variations, ib. Dispo- sition by a minor, ib. ; by married per- sons, ib. Can a pupil's heritage be disponed ? ib. Ratification by married woman, ib. Disposition by an outlaw, 189. Price or consideration, ib. Stamp- duty on sub-purchase, ib. Excambions, ib. Gratuitous conveyance, 190. Z>w- positire clause, ib. The disponee, 191. Variations from status, ib. Corpora- tions, ib. Married persons, ib. Con- junct rights. (Sec Special settlement. Marriage-contract.) The subjects, ib. Right of superiority, 192. Part of a barony, ib. Variations from the nature of the subject, ib. Teinds, ib. Patron- ages, ib. Fishings, ib. A'ariations from purpose of the conveyance, ib. Dispo- sition in security of teind-duty, ib. In real warrandice, 193. Marches, ib. Modes of description, ib. Rule when 538 INDEX. marches controverteil, ib. INIoilo of describing boundaries, ib. Real bur- dens, 194. Terms of constitution, ib. Must declare an express burden, ib. Ought to enter tlie dispositive clause, ib. Creditor must be expressed, ib. Re- served burden of part of price, 195. Reserved faculty to burden, ib. ; used in conveyances in fee and liferent, ib. Liferenter thus the virtual proprietor, ib. Faculty must be exercised, ib. INIode of exercising, ib. May be conferred on a third party, ib. Mode of transmis- sion and recovery, 196. Assignable, ib. ]May be taken up by general service, ib. Power of sale may be reserved, ib. Recovery by poinding the ground and adjudication, ib. Order of preference and ranking, ib. ; in questions with dis- ponee and his creditors, depends on registration of sasine, 197. Good against disponee and his creditors without in- feftment, ib. After infeftment depends on terms of sasine, ib. Creditors in real burdens or liens, how preferred in questions among one another, ib. Forms of attaching, 198. Adjudication, ib. Ground-annnah; 199. Ground-annual is a reserved burden, ib. Redeemable or absolute as agreed on, ib. Must enter the sasine, ib. Origin, ib. Re- markable instance of a ground-annual valid without infeftment, 200. Com- pared with feu-duty, ib. Mode of con- stitution, ib. Quality and effect, 201. Is a personal burden on the disponee, ib. Cannot be renounced without consent, ib. Does not bear interest without pac- tion, ib. Obligation to infcff, 202. Im- portance of technical accuracy, ib. Ob- ligation alternative, ib. Examples of in- accurate structure, ib. Seller in appa- rency, ib. Effect of conveyance by, ib. Cannot dispone for a full year after death of ancestor to prejudice of his creditors, ib. Title must be completed in his own person, ib. Consequences of delay, ib. Remedy on his dying before its completion, 20.3. Seller's ancestor uninfeft, ib. Mode of granting a valid title, ib. Cannot assign precept so as to warrant infeftment before service, ib. When seller's right personal, ib. Form of disposition, 204. Disposition of su- periority, ib. Form, ib. By entailed proprietor, 205. By vassal to superior, ib. Structure of the seller's title, ih. Form of disposition when subinfeuda- tion prohibited, ib. Api)ortionment of feu-duty, ib. Superior's consent neces- sary, 206. Procnratory of resignation, 208. (See Charter of resignation.) Clause of warrandice, 208. Extent of the obligation, ib. Absolute, ib. Effect of incumbrances not being cleared, ib. Of purchaser transacting with a real creditor, ib. Obligation to clear incum- brances advisable in doubtful cases, ib. Effect of delay to infeft, 209. Warran- dice by trustees, ib. Exceptions of feu-rights and leases, ib. Terms of re- servation of right to reduce, ib. Effect against purchaser, ib. Suggestion to insert exception of feu-rights in disposi- tive clause, ib. Obligations in leases how far binding, 210. Burdens not con- stituted by lease, ib. Obligations by purchaser and tenants mutual, ib. Assig- nation to rents. (See Charter.) Assig- nation to title-deeds, 211. Effect of, ib. Subject of a writ not necessarily con- veyed by the ordinary clause, ib. Dis- position not a title-deed till after de- livery, ib. Title-deeds cannot form a separate security, ib. Exception of writer's hypothec. See Heritable bond. Purchaser may retain part of price to relieve the titles, ib. Warrandice of the assignation. (See Charter.'^ Obligation as to public burdens. (See Charter.^ Sasine, 212. See Sasine. Dispositive clause. See Charter, Disposi- tion, &c. Dissolution of marriage, 426. Clause saving the provisions, ib. See Marriage- contract. Division of commonly, 140. See Servi- tudes. Duniinanl tenement, 136. See Servi- tudes. Dominium directum and dominium utile, 45, 55. Donniions between husband and wife, .390. Doqiiet hy notaries, 13, 14. Dofjuet of sasines, 30. See Sasine. Duplicand of feu-duty. See Charter, Re- lief. Duration of lease, 362. See Entail. Duties, feu and blench, 82. See Charier. E. Eldest daughter in destinations, 323. Eldest son in destinations, 323. Entail, 334. Entails prior to the statute of 1685, ib. Irritancies invented by Sir Thomas Hope, ib. Statute of 1685, 3.35-6. General structure, 337. De- INDEX. 53'J ponds on slatiito, ib. Feudal ellVct of rosigii.it ion ad rcmanenliam suspended, ib. Opinions as to necessity of tech- nical expressions, ib. Terms used to de- signate the clauses, 338. Knles of con- struction, ib. Have not been uniform, ib. Strictrulenowestablished, ib. How applicable, 339. ISIaintains in ipieslions inter liii-redes, ib. Fiirui itf the deed, ib. Various, ib. Form of disposition most convenient, 340. Must contain or bear sutVicient reference to the statutory clauses, ib. AVhat deeds expressed in the statute, ib. Unnecessary to repeat the statutory clauses in precepts of sasine and prociiratories of resignation, unless in a separate form, ib. Clauses of the e/j/ai7, 341. yarrdtii-e clause, ih. Name and desii?nation of the entailer, ib. Not necessary that his title should be feudal- ised, ib. Power to make an entail, 342. Entail by an heir-apparent, ib. Cause of granting or consideration, ib. Disposithe clause, ib. Contains the destination, 343 ; and the lands, under a reference to the restraining clauses, ib. Is the ruling clause, ib. What rights may be entailed, ib. Obliga- tion to infeft, ib. rrocuratory of resig- nation, 344. Destination repeated, ib. Conditions, ib. Condition to hear name and arms, 345. Binding on heirs in- dependent of statute, ib. Conditions to record and feudalise the entail, ib. Both essential as against third parties, ib. Must a relative deed of nomination of heirs be registered ? 346. Entail regis- tered but not feudalised, ib. Distinction between powers of an heir of the inves- titure and a stranger, ib. Entail feudal- ised but not registered, ib. Estate may be sold or adjudged, ib. ; unless where entail onerous, ib. Condition to possess under the entail, 348. Condition to insert clauses in title-deeds, 349. Clauses must be recited, ib. Condition tf devolution, ib. Construed unfavourably to heir in possession, ib. Examples, ib. Per- sons restrained, 350. Terms, heirs iind substitutes, how interpreted, ib. The entailer not restrained, unless under an onerous entail, 351. The insti- tute, ib. Examples, ib. Heirs or substitutes, 352. Ilcirs-portioners, ib. Tailzie expires when these succeed, ib. Heirs whomsoever, 353. Have a fee- simple right, ib. Last substitute, ib. Is not restrained, 354. Terms desrrij)- tice of the institute, ib. Cases, 355, 366. Terms descriptii-e of the heirs, ib. Cases, 357. Character not altered by mode of completing title, ib. Practical rules as to persons restrained, ib. Prohi- bitions, 358. General nature, ib. 359. Effect of prohibitive clause not [jrotect- ed by irritancies, ib. Froliibition to alter, 360. Cases, ib. Exception, ib. Unnecessary to i)rohibit additions to destination, ib. Eflect of omission, ib. Prohibition to alienate, 361. Terms, ib. Affects absolute conveyances, 362. Feu- rights, ib. Provisions to widows, ib. Leases of unusual endurance, ib. Term of endurance of leases, ib. Effect of grassura, 363. Leases of coal, mansion- house, &c. 364. Affects cutting of wood, ib. Thirlage, ib. But not deeds propelling the succession, ib. Prohibi- tion to contract debt, 366. Effect of pre- scription, ib. Last substitute may bur- den estate, ib. Effect of forfeiture for treason, ib. Rules of construction, ib. Cases, ib. 367. Liferent securities and trusts not affected, 367. Provisions to children excluded, ib. ; and meliora- tions to tenants, ib. Prohibition to per- mit adjudications, ib. Does not affect adjudications of life-interest, ib. Form of such adjudications, ib. Reservations from the prohibitions, 368. Power to provide widows, ib. ; not a surrogatum for the terce, but must be exercised, ib. Pro- vision by locality, ib. Differs in effect from annuity, 369. Power to provide children, ib. Form and effect, ib. 370. (See Marriage-contract.) Power to grant feus, ib. To sell for special pur- poses, ib. To excamb, ib. To grant leases, ib. Improving leases authorised by statute, 371. Power to widows and widowers to grant leases, ib. Irritant and resolutive clauses, 372. Combined effect, ib. Structure, 373. Terms, 374. General and special reference to fetters, ib. Cases, ib. Omissions or defects in reference, 375. Cases, ib. Contravener forfeits for himself only, 376. Etlect of extending the forfeiture to his heirs, ib. Deeds jirohibited must be reduced, ib. Separate effect of the irritant and resolutive declarations, ib. Purging of irritancies, 377. Extent should be defined, ib. Provisions, 379. Provision as to succession on contraven- tion, ib. Heir succeeding must denude on existence of a nearer heir, ib. Pro- 540 INDEX. rmon tin to debts and adjudications, ib. Liability of institute and heirs, ib. Mode of selling for payment of entailer's debts, 380. Heir not bound to discharge ab- solutely, ib. Modes of keeping up debts against the estate, ib. Interest and an- nuities must be paid, ib. Provision for the exclusion of conttaveners, 381. Pro- vision for completing titles, ib. Requi- sites of the statute, 382. Deeds, ib. Effect of entry by trust-adjudication, ib. Of conveyance to a trustee, ib. Provi- sion ineffectual against singular succes- sors, ib. Effect of informal titles on the title of a vassal, 383. Obliyation to relieve the heirs of debts, ib. Clauses of revocation and dispensation, ib. Power to revoke, how exercised, 384. Effect of delivery of entail, ib. Effect of re- cording and completing a title under it, ib. Procuratory for recording, ib. Original deed must be registered, 385. Statute retrospective, ib. "Whole te- nor must be inserted in register, ib. Who may apply for registration, ib. Precept of sasine, 387. Infeftment, ib. Feudal effect not dependent on the sta- tute, ib. Entry with the superior, ib. Charters and precepts must contain the restrictions, ib. Statutes conferring powers on members of tailzie, 388. Entail, heir of, service of, 473. See Service. Entry of heirs, 441. Introductory re- marks, ib. Origin of service and pre- cept of clare, 442. See Special service, General service. Forms in special service, Forms in general service, Trust-adjudica- tion, Crown precept, Precept of clare constat. Entry, term of, 139. See Minute of sale. Entry with the superior, modes of, 239. When seller entered, ib. Seller infft hut not entered, 240. Seller not infift, ib. Effect of conveyance of a personal right, ib. Purchaser dying uninfeft, 241. Pur- chaser dying unentered, ib. Mode of entry with subject-superior, ib. ; with the Crown, ib. Mode suggested by Mr Bell considered, 242. Superior acqui- ring the property, 243 ; by purchase, ib. ; by succession, ib. Vassal actjuiritig the superiority, ib ; by purchase, ib. ; by succession, ib. Seller an heir-apparent, ib. Effect of accretion, ib. Adjudica- tion a mid-impediment, 244. Cases of defective or intricate titles, ib. Effect of resignation on wrong procuratory, ib. Erroneous combination of confirmation and resignation, 24,5. Is the confirma- tion or the resignation the ruling form ? ib. May title be ascribed to either ? 246. Intricate case of splitting and re- consolidation, ib. Defective obligation to infeft, 247. Effect of superior's re- fusal to confirm, ib. Effect of seller's heir entering, 248. See Confirmation, Resignation, Adjudication, Redeemable Rig/ils, Entail, Service. Entry with the Crown, 249. Signatures, ib. Signatures of resignation, 250. Pre- amble, ib. Dispositive clause, ib. Quce- quidem, ib. Incidental clauses, 251. Change of name of lands, ib. Clause of novodamus, ib. Erection of barony, ib. Disjunctioiifrombarony, 252. Clause of union, see p. 113. Tenendas, 252. Reddendo, 253. Forms in expeding the charter, ib. Precept, 254. Charter, 255. Entry in principality lands, 255. In church lands, ib. Suggestion as to Crown titles, 256. Erasures in writs, 33 ; in sasines, &c., 35, 36. Erection, Lords of, 84. Their right to the feu-duties, ib. Escheat, casualty of, 53. Eviction, effect of, on warrandice, 91, 208. Evidence in proving of the tenor, 384, et seq. Excambion, nature and form of, 189. Of entailed lands, 370. Exclusion of assignees, effect of, 517. {Add.) Exhausted precept of sasine, 133. Expenses, necessary, covered by penalty in bond, 271. What they comprehend, ib. Expense of conveyance, by whom paid, 170. Expiry of the legal, declarator of, 297. Extent, old and new, 462, et seq. See Sjjecial service. Extinction of feudal rights, 492. See Resignation ad remanemuim. Discharge and Renunciation, Redemption, Amis- sion, Prescription, Confusio. Factor, lialiility of trustees for, 438. Faculty to burden, 195, 317. Father, powers and rights of, under mar- riage-settlements, 390, 399, 412, 421. See Marriage-contract. Fee and liferent, 318. See Special settle' ment. INDEX. 541 Fellers of an outuil, 338. Feudal system, 38, el seq. Feudal law, 38. Feudal relation, general view of, 5G. Feu duties, 82. Sec Charter. Feu-holding, f)2. Fiar. Sec Fee and liferent. Marriage- contract, Service of heirs. Fiar and liferentcr, entry by, 484. Fiduciary fee, 393. Fisliini^s, 65. Forfeited person, debts of, affect the estate, 366. Sec Entail. Forms in special service, 455 ; in gene- ral service, 470. Fortaliccs arc inter regalia, 65. Freehold votes, old system of, 207. Fuel, fcal and divot, servitude of, 137. Fuel, carriage of, 83. Future debts, securities for, 294. General charge, 303. General-special charge, 303. General disposition and settlement, 314. Succession by provision, ib. Purpose of the deed, ib. Form and terms, 315. Dispositive words, ib. Terms descrip- tive of heritage ib. Glebes, allodial, 52. Gold mines, 65, 69. See Charter. Grassum, 363. See Entail. Gratuitous conveyances, consideration in, 190. Gratuitous alienation, mode of excluding in settlements, 331. Import of term, 359. In marriage-contracts, how bar- red, 399. Ground-annuals, 199. See Disposition, Guardian. See Curator. H. 7/oy) and stajile, entry by, 514. Heir. See Entrt) of Heirs. Heir, last, or ultimus liajres, 35.3. Heir in utero, 467, 473. See Forms in services. /feir of, a marriage, 395. Rights of, 401. Jus crediti vests without service, 452. See Marriage-contract, General Service, Heir of tailzie or entail, 362. See Entail. Heir-apparent, sale by, 202 ; conveyance by, 188, 202. Hrirs-portioners, entry by, 484. Heirs and assignees, 6 1 . See Charter. Heirs or substitutes, 352. See Entail, Heirs whomsoever in entails, 352. Heirs, terms descriptive of different kinds of, 321. Sec Special settlement. Jlcritahle bond, 266. Introductory re- marks, ib. Cluiiaes of the bond, 268. Narrative, ib. Description of granter, ib. Acknowledgment retation of a provision of conquest to the wife, ib. To children, 413. Practical rules as to clauses of con- quest, ib. Wife's power to renounce pro- visions, 414. Can it be excluded ? ib. Provision over entailed subjects, ib. By annuity, ib. By locality, ib. JNIode of constitution and effect, 415. Distinction between the two modes of provision, ib. Provision under Lord Aberdeen's Act, ib. 416. Tenendas and reddendo, 417. Vrocuratory of resigna- tion, ib. Property in expectancy, ib. Provisionsto younger children and children of n second marriage, ib. Tei'ms descrip- tive of the children, ib. Provision by burdening the heir, ib. Mode of con- stitution, ib. By an obligation to secure a sum of money, 418. By burdening the wife's jointure, ib. Direct convey- ance to the heir's prejudice incompetent, ib. Constitution of jus credili, 419. Cases and examples, ib. 420. Substitu- tion of heirs of the children, ib. 421. Father's power of division, ib. Chil- dren's power to transact, ib. Provi- sions out of entailed estate, 422. Under power in the deed, ib. Under Lord Aberdeen's Act, 423. Ciui eldest son transmit a right to his children ? ib. Mode of constitution and effect of sta- tutory provision, ib. Discharge by hus- band or wife of legal provisio)is, 424, Assignation by the wife, ib. Exclusion 544 INDEX. oijus mariti and right of administration, 425. Prorision against effects of disso- lution of the marriage, 426. Appoint- ment of trustees, ib. Clause of registra- tion, 427. Precept of sasine, ib. In- feftment, ib. Effect under destinations to spouses and children, ib. 426. Effect of a trust, ib. Meliorations, obligation on purchaser for, 210. Mercantile writings favoured, 26. Mid-impediment, 222. See Charter of con- Jirmation. Mills pass as pertinents of lands, 63. Mines and minerals pass as pertinents of land, 63 ; mode of reserving, 68. INIines of gold and silver, 69. Minoriti/ as alTecting the positive prescrip- tion, 179. Minors, 188, 391. See Dispositio?i, Mar- riage-contract. l^Hnute o^ sa.\c, 152. See Sale. Minute-book of register of real rights, 124, 126. Missives oi saXe, 132. Money, what a legal tender, 501. Morlijication or mortmain, 51. Mortis causa conveyances, 314. Mutual entails onerous, 342, 351. Sec Entail. N. Name and surname, subscription with, 10. Narrative clause. See Charter, Disposi- tion, ij-c. A't'gn//iie prescription, 180. See Searches. Nun-entry, 476. Introductory remarks, ib. Caused by deatli of vassal last in- feft, 477. Not produced by conveyance with public or alternative holding until infeftment confiiTned, ib. Excluded by infeftments in conjunct fee and liferent, ib. By a reserved liferent, ib. By terce, courtesy, 478; and liferents con- firmed by superior, il). Non- entry duties, ib. Different before and after citation in the declarator, ib. Before citation, how estimated in different holdings, 479. After citation the free rents are due, ib. Superior's claim, how barred, ib. Pre- sumed discharge of duties, 480. Niin-entry, adjudication of subjects in, 302. Non-entry, declarator of, 21 7. JMode of exacting composition from a singular suc- cessor, ib. See Charter of confirmation. Notarial instruments. Solemnities of sa- sines, &c. 31. May be written book- wise, ib. Pages must be numbered and subscribed, ib. Doquet, 32, 1 17. At- tested by one notary and two witnesses, ib. Notaries. Office of notary, 116. Privi- lege, 117. Protocol book, ib. Sub- scription for parties, 6, 12, 14. See fFrit. O. 0/>%a^'ow6- of importance, what? 10. Offer and acceptance, 152. Offers at public sale, 165. See Articles of roup. Offerers at public sale, liability of, 165. See Articles of roup. Official writs, 30. Oneris ferendi or support, servitude of, 137. Onerous entail, 342, 351. See Entail. Open or unexecuted charter assignable, 134. Over and above performance, effect of terms in penalties, 272. P. Parish ministers ; may they act as notaries ? 14. Parish or parochial' burdens fall wholly on the heritor, 517, {Add.) Parsonage teinds, conveyance of, 67. Parties to writs must be fully described, 2. Parts and pertinents, 63. See Charter. Passage or way, servitude of, 137. Pasturage, servitude of, 136. Pasturage as a pertinent of land, 63. Patronage, right of, 192. See Disposition. Payment, effect of, in extinguishing secu- rities, 497. Payment of price, term of, 160. Penalty in bonds, 270. See Heritable bond. Performance over and above, effect of terms in penalties, 171. Persojin/ rights, 134,203. Power of pro- prietor of a personal right to make an entail, 341. See Disposition, Heritable bond. Entail. /'/ace of executing a deed, 21. See Jrrit. Plan, reference to, in describing lands, 193. Poinding of the ground, 85, 196, 273, 478. Positive prescription, 172, et seq. See Seller's title. Positive servitudes, 136. Sec Servitudes. Possession of apparent heir, effect of, as regards a purchaser, 203. See Dispo- sition. rosscssio7i, 178. See Seller's title. iNi)i:x. 545 Power of sale. See liond and Dup. in sec. Trust-settlement. Powers reserved in entails, '3GS ; in mar- riage-contracts, 400. Precept of sasine, 96. See Charter. Precept from Chancery, or Croicn precept, 475. Purpose of, ib. Limited to a term, ib. Susine iipun, 482. When infeflment must be given, ib. Given by Sheriff, ib. Commission to another, when necessary, ib. Instrument autlien. ticated by sheritT-clei'k, ib. Precept of clarc constat, 483. Voluntary or on charge, ib. Forms for compelling an entry, ib. Entry by fiar and life- renter, ib. By heirs- portioners, 484. When subjects sequestrated, ib Supe- rior unentered, ilj. Declarator of tinsel, ib. Disponee of the superiority cannot be charged till publicly infeft, ib. AVhen superior's title under discussion, 485. Form of entry by over-superior, ib. Form and effect, ib. Variations, ib. Entry on special service, ib. General service sometimes required, ib. Heirs of entail, ib. Character of the heir, 486. Precept must be in terms of for- mer investiture, ib. A prescriptive title, ib. An active title only as against the superior, ib. Does not bar special service, ib. 487. Effect as a warrant of infeftment, ib. Personal, and cannot be assigned, ib. Expires on death of granter or grantee, ib. Advantages, ib. Exam- ples of combination with other forms, 488. Sasine, ib. Must bo taken during the joint lives of the granter and grantee, 489. Pre-emption, right of, 69. See Charter. Prescription. See Seller's title. Searches of incumbrances. Price. Heir under a defective entail not bound to re-invest, .332, 347. Price in sales, 160, 163. See Minute of sale, Articles of roup. Price of lands, mode of settling, 161. Trincipality lauds, 255. See Entry with the Crown. PriiMte writs, 1 , 2, et seq. Privde^ed writs, 26. rrohativc, as applied to deeds, 10. Procuralory of resignation. See Dispo- sition, Charter of resignation, Entnit. Prohibitions in settlements, 331 ; in en- tails, 358, el scq. Progress of titles, 154, 172. See Minute nf sale. Seller's title. Pro/jt-r/// and superiority, righjs of, 45, 55. Proiiny of the tenor, 502. What u-rits limy be restored, ib. it'hen e.^aentiul, 603. Procedure, 504. Evidence, ib. Casus amissionis, ib. Adminicles, .505. Writer and witnesses, if essential to be stated, 506. Oath of party, 507. Effect of decree, 508. ProL-isions to husbands and wives. See Marriaye-contruct, Entail. Provisions to children. See Mariiage' contract. Provisions in entails, 379. Public burdens, 95. See Charter. Pupils, 188 ; heritage of, cannot be alienated, ib. Purchaser. See Minute of sale, Articles of roup. Disposition. Purpreslure, 55. Q. Quaquidcin of charter of resignation, 232 ; of signature, 250 ; of charter of adjudi- cation, 311. Quia emptores, English statute, 143. Quorum of trustees, 432. Sec Trust-settle- ment, K. Ratification of deeds by a wife, 188. See Disposition. i?e«Z burdens, 71, 194, 312, 316; by ground-annual, 199. See Charter, Dis- position, Special settlement. Real warrandice, 90. See Charter. Recognition, 54. Reddendo, 82. See Charter. Redeemable rights, 257. Securities over land, ib. Transmission of, 306. Entry with superior, 310. Composition, ib. Rules of preference, 312. Redeemable annuity, bond of, 293. See Bond of redeemable annuity. Redemption of wadsets, &c. 501. Legal tender, ib. Bonds, &c. ib. Effect of premonition on rate of interest, 502. Reyalia, 65. Sec Charter. Registration of deeds equivalent to delivery, 29. Registration, clause of, in charters, 96 ; iu heritable bond, 282. 7f«'(7i,s/ra//i)H of sasine, origin of, 119. Es- tablishment of registers, 122. Improve- ments by subsci|ucnt statutes, 123. Present system, 126. Minute-book, ib. Booking, 127 ; is the ultimate test of registration, 128. Discrepancy between minute-book and register, ib. No room for po/i /)H.ssM effect, 129. Attestation by keeper, ib. Errors in register, 130. Fatal, if in essential pail?, ib. Corrcc- 2 M j4f) INDEX. tiou iiicomi)eteiit, ih. Dociuot must ho transcribed entire, ib. Suggestion for altering the system of booking, 131. Effect of a sasine unregistered, 132. Confined to parties liable in warrandice of the precept, 133. Unregistered sa- sine docs not exhaust the precept, ib. Feudal effects of charter and registered sasine, ib. Charter binding on superior, 134. Oil vassal and his heirs, ib. And on assignees before infeftment, ib. Sasine essential against singu- lar successors of superior, ib. Restric- tions must be expressed in sasine and register, 135 ; also relaxations in fa- vour of vassal, ib. Result produced by charter and sasine combined, ib. liclajrations or conditions in favour of vas- sal in feu-charter, 79. Relief, 480. Introductory remarks, ib. If due without paction, 481. How esti- mated, ib. See Charier. Benlal, purchase by, 160. Rental in judicial sales not to be relied on, 164. Rents, assignation to, 93. See Charter, Disposition of sale, &c. Renunciation. See Discharge and renuii.- cialioii. Reservations by superior, 68. See Charter. Resignation and confirmation, effect of the combination of the charters, 234. Resignation ad remanentiam, 492. Feudal effect, ib. Extinguishes the fee, ib. Exception where superiority entailed, 493. Procuratonj, ib. Form, ib. In- strument, 494. Must superior be enter- ed ? ib. Form of instrument, ib. Re- gistration, ib. Effect, ib. Ei-asures, &c. 33. Resignation, charter of, 225. Procuratory for resigning, ib. Resigner not divested till resignatary invested, ib. Resigna- tion originally propriis manihns, \h. AVritten procuratories introduced, 226. Instrument of resig. in far. now in dis- use, ib. Procuratory of resignation a valid form of transmission, ib. Words of style ought to be adhei-ed to, ib. Title of the supei-ior to receive resigna- tion ib. Is charter a non hahcnte capable of being validated by accretion ? 226-7. Consciiuences of superior's title being defective, 228. Disponer of superiority continues superior until disponee pul)- licly infcft, ib. Mode of enforcing an entry, ib. Procedure under act of Geo. II. ib. What objections competent to buperior, il), If superior himself unen- tered and rcfu-sc to enter, ib. Kenicdy imder act of 1474, com])licated and bur- densome, 229. Of the charter, il). INIust be in terms of the procuratory, ib. Two sets of subjects contained in different proeiu'atories may be introduced, ib. Clauses of the charter, 231. Dispositive clause, ib. Contains the subjectsasin the procui-atory, ib. Heirs and assignees, ib. Objection to these terms considered, ib. Quaquidem, 232. Purpose of, ib. Pre- cept of sasine, 233. (See Charter.} In- strument of sasine, 233. Effect of act of 1693 validating procuratories after death, ib. Feudal effects of infeftment, ib. Restrictions upon alienation, 46 ; upon vas- sal's right, 71. Retour of special service, 468 ; of gene- ral service, 473. Return, effect of clause of, 331. Reversion, rights of, 239. Registration of, ib. Not affected by negative pre- scription, 181. Right and title of seller, 154. See Minute of sale. River as a boundary, 64. S. Sale, minute of; nature and ohject, 152. Obligations on the seller, ib. Obligation to grant a disposition, 153. Form of, ib. Term of implement ought to be specific, ib. Import of words, " betwixt and a certain term," ib. Oltligution to deliver a valid progress, 154'. Distinc- tion between right and title, ib. Ques- tions as to seller's right, ib. Limited or defective riglit, ib. May be discussed by suspension, ib. Questions as to title, 155. Seller liouiid to deliver a sufficient title, ib. Modes of adjustment, ib. Re- nunciation of his riglit by purchaser, ib. When obligation /?(c/i/m imprestctbile, ib. Whether seller bound to enter with the superior, ib. Subjects in non-entry, 156. Obligation to purge incumbrances, 157. Incumbrances, what? ib. Burdens ap- pearing on the registers, ib. Must be purged before price paid, ib. ; and dis- charges registered, ib. Kffect of negative prescription, ib. Burdens not appearing on the registers, 158. Servitudes, feu- duty, &c. ib. Must be extinguihiied or value deducted, ib. EU'ect of pur- chaser's undcrt.'iking burdens, ib. Bur- dens appearing on the titles, aliiiougli not made real, ib. Term of entry, 159. Eftlct of dillcrcnt modes of stipulation, inde:c. i47 il). Di'cliir.ilioii of millil)' on unn ['ir- funn-ince, ib. Oblii/ulion ui the pur- c/iristr, ICO. Price oiiglit to be fixt'd, ib. I'tirch.ibL' by riMital, ib. liitere.st wlicii due, ib. Ill jiidici.il nuIcs, ib. Term of payment, ib. Mode of setilemcnt, IGl. Purchaser may uiidertiike burdens, ib. Sale and purchase of lands. Piactical rules, 186. Voluntary sales, ib, Pid)lic and judicial sales, 187. Sale, power of, ^80, 4o6. See Bi n<1 and (lisposiliim in security, Trust sdtlcmeiit. Sulmon-JishiuSearc/ies of incumbrances, 180. Negative prescription, ib. Act of 1617, 181. Docs not affect rights of property, ib. Time from which it runs in diflcrent rights, ib. How interrupted, ib. De- fects of a search for forty years, 13.3. Dangers not appearing J rom the regisltrs, ib. Litigiosity, its nature, ib. By ac- tion, ib. Ey diligence, 184. Deatlibed, ib. Fraud, iS.c. ib. Claims of ances- tor's creditors, ib. Conjunction and confidence, ib. Servitudes, 185. Tack;*, ib. Tcrce, ib. Courtesy, ib. Seat in parish church, a pertinent of land, 63. Securities over land, 257- Seller's title, 172. ^yhat a sufficient pro- gress, ib. Positive prescription, ib. Statute of 1617, 17.3. Title of a sin- gular successor, 174. Charter, ib. What writs il comprehends, ib. Sasine, 175. Jlust be ex facie valid, ib. Sasine pro- priis manibus, ib. Extract from regis- ter, effect of, ib. Disponee of an heir may found on his author's sasine, ib. Rights to which sasine not essential, M 2 >48 INDEX. 17G. Tiik ('/ an heir, ib. Sasine or sasint'S sufficient without their warrant, ib. Need not be exactly continuous, ib. Sufficient that party can connect •with a sasine, 177. Sasine more hurgi, ib. Tide of an ndjudger, ib. Charter and sasine after expiry of legal, ib. Ob- jections to debt excluded, ib. Possession, nature of, 1 78. By party, or those having his right, ib. Effect of superior's pos- session of property, ib. Right of pa- tronage, ib, Teinds, ib. Fishings, ib. Interruption of possession, ib. Va- rious modes of, ib. 179. Possession on double title, ib. Sequestration by heritable creditor, 274-. Service, special and general, origin of, 4.4-2. Distinction between the two forms, 4t.3. General effect, ib. 444. Sen-ice, general, 447. When necessary, ib. What 1 ights it carries, 448. Con- ditional institute takes without service, ib. 452. General service cannot be superseded by precept of dare constat, 448. Is effectual to vest personal rights without subsequent infeftment, ib. Particular cases, 449-453. Heirs or children of a marriage having^^s cre- dtti require no service, 452 ; or party having right under a trust-conveyance, ib. Service in general may be neces- sary from a defective or limited infeft- ment, ib. Tentative title, 454 ; when necessary and competent, ib. Exclud- ed by prior service in same character, il). Forms in general service, 470. brieve, ib. ; same as in special service, ib. Claim, 4:1 \. First three heads only answered, ib. Second head contains the points of inquiry, ib. Character of the heir, ib. Must be precise, ib. Cases, ib. Procedure, ^12. Similar to procedure in special service, ib. Pro- pinquity when remote how established, ib. Objections, ib. Preliminary, as in special service, ib. On the merits, 473. Opposing party must have a competing brieve, ib. Retour, ib. Effect, ib. Is a prescriptive title, ib. Service of heirs of tailzie, 47.3. General service, ib. Statutory clauses may be omitted, 474. Special service, ib. To an institute or heir deceased, ib. On declarator of contravention, ib. Service cum hencjicio inventurii, 475. Pur- pose, ib. Service, special, 445. When necessary, ib. Applicable to all feudalised rights, ib. Who competent to serve, ib, Can- not proceed when the fee is full, ib. ; unless the infeftment be on a precept of dare constat, or (z von domino, 446. Particular cases, ib. 447. Service in special expires unless infeftment fol- lows, 444. Forms in special service, 455. Brieve, ib. Execution of the brieve, 456. Preliminari/ procedure, i57. Jury, ib. Objections, 458. To brieve and executions, ib. Exclusive title, ib. Production of retour of a prior service, ib. Bastardy, ib. Claim, 459. First head, ib. Death of ancestor, how pro- ved, ib. His title, ib. Sasine tnust bear to be registered, 460. Death at faith and peace of Sovereign presumed, ib. Second head, ib. Character of the heir, ib. Must it be precise? ib.461. Le- gitimacy presumed, ib. Propinquity, how proved, ib. Nominatim substitute, ib. Third head, i:62. Claimant of law- ful age, ib. Fourth head, ib. Opi- nions respecting old and new extent, ib. Old extent, 463-4. New extent, 464-5. Valued rent, 465. Proof of extents and valued rent, ib. Old ex- tent now superfluous, ib. FiJ'lh head; who superior, 466. Sixth head ,- Hold- ing and reddendo, ib. Seventh head ; Non-entry, ib. (See Non-entry.) Ob- jections on the merits, ib. Parties who may appear, ib. Party holding feudal right, 467; or on behalf of an heir in utero, ib. Party holding a conveyance may cross-examine witnesses, ib. Ille- gitimacy, ib. Cases when service cannot be stopped on behalf of an heir in utero, ib. In such caseslheheir-expectantinay act as fiar, 468, Verdict, ib. Is autho- rity for fraining retour, ib. Retour, ib. Form and authentication, ib. Is lodged in Chancery, 469. Claim, &c. ought to be lodged, ib. Effect of retour, ib. Vests nothing in the heir without in- feftment, ib. ; but includesa general ser- vice in same character, ib. Is such effect lost by not following up service as a special service? ib. A prescriptive title, ib. Lands in more than one sheriffdom, ib. Jurisdiction of macers transferred to Sheriff of Edinburgh. 470. Court of the Sheriff of Edinburgh, ib. Au- thorised by commission, sanctioned by the Court of Session, ib. Forms sub- stantially the same as in ordinary cases, ib. Servient tenement, 136. Servitudes, 1 36. Positive and negative, ib, ; are defined by law, ib. Restrictions INDEX. )49 not cliissed under servitiifles depend on contract, and arc incfl'uctual against singular successors, lb. Positive servi- tudes, ib. Constitution of, 137; by separate deed or clause in titles of domi- nant or servient tenement, ib. Possession necessaryagainstsingular successors, ib. Infeftment not essential although advi- sable, ib. Terms of constitution, ib. Ilcgistiationcustomarybutnotessential, ib. Negative servilwles,\h Incapable of possession, ib. Can only be constituted, by writing, ib. Mode and terms of constitution, 138. Advisable to insert the restriction in titles, ib. Sasine com- petent, ib. Thirlage, constitution of, obsolete, 139. Commontij, nature of, ib. Constitution, ib. Division, title and rule of, 140. Exceptions from rule, ib. Servitudes, are real burdens or restrictions, 71. Settlement. See General and special settle- ment. Sheriff of Edinburgh as Judge in services on commission, -ITO. Sheriff-clerks, their privileges in infeft- ments, 1 17. Signatures, 2i9, See Entry with the Crown. Silver mines, 69. See Charter. Singular successor, composition of, 215. Whoaccounted singularsuccessors,2 16. See Charter of confirmation. Solemnities of deeds, i, et seq. See Writ. Special settlement, 316. Purpose of the deed, ib. Form, ib. Absolute convey- ance with reservation of liferent and power to alter, ib. Effect of clause of warrandice, ib. Dispositive clause, ib. Constitution . Superinritij and property, nature of rights of, 4-5, 55. Support, servitude of, 137. Si/mbols of possession, 99. Of resigna- tion, 148, 51 i. Teinds, right to, personal or feudal, 67. Conveyance of, 192. See Charter. Tender, legal, 501. Tenendas of cliMter, 80 j of Crown char- ter, 252. Tenor, [)roving of, 502, el seq. See Pro- ving i of an agricultural lease not excluded by the strict entail, 362. See Entail. Testi7ig cl-Au^e of deeds, 19. See li^rit. Thirlaye, 138. Tinsel of feu, ob non solutum canonem, 76 ; of superiority, 228, 481-5. Title, feudal, 42, et seq. 133. Titular of teinds, conveyaiice by, 192. Whether he can demand security for teind-duties, ib. Title-deeds, assignation to, 211-279; lien or hypothec over, 279. Title of a seller, 172. See Seller's title. Titles, progress of, 154, 169. Tow II- Clerks, their privileges in infeft- ments, 117, 511. Toion- Councils of burghs, administrators of the properly, 50. Tradition. See Sasine. Transmission of redeemable rights, 306. Transmission, Acin\>, of, 14-2. Early modes of, ib., et seq. Trust-adjudication, 489. Nature and ef- fecf, ib. Origin, ib. Form, ib. Effect, 490. Flow excluded, ib. Trust- setllement, 42S. Introductory re- marhs, ib. 429. Trust, as i\ feudal right, ib. 430. Clauses, ib. 431. Dispositive clause, ib. Who may be trustees, ib. Joint appointment, 432, Quorum, ib. Survivors, ib. Effect of death, ib. Re- fusal to accept, ib. Absence, ib. No- bile ojfic.ium of the Court, when exercised, ib. Trusts, with extensive discretionary powers, fall by non-acceptance, 4'3.3. Acceptance, express or implied, ib. Trustee wlio has accepted cannot capri- ciously resign, ib. ; or refuse to concur in necessary acts, ib. A party named, without his consent must denude of feu- dal rights, ib. I'ower to delegate, ib. ; must be expressly conferred, 434. Sub- jects must be conveyed to the new trus- tees, ib. Remuneration must be ex- pressed, ib. Purposes of the trust, 435. Form of constitution, and rule of inter- pretation, il). Must be implemented without undue delay, ib. Reversionary interest, ib. Radical right remains with the truster, unless conveyed to another, 436 ; and the trust-right a mere burden on the fee, ib. Trustees have a prefe- rence for advances, &c, ib. Powers of the trustees, ib. Power of sale differs from direction to sell, ib. They cannot purchase the subjects, 437. Rule of construction of direction to convey, ib. Limitation of respottsilnlity , 438. Effect of clause, ib. ; and of its omission, ib. Precept of sasine, 4.39 ; does not apply to future trustees, ib. Infrftment, ib, ; must contain the qualifications of the right, ib. What necessary to make debts real burdens, il). Trustees ought to denude when purposes fulfilled, ib. Effect of refusal of the heir of last sur- vivor to enter, 440. jMode of re-in- vesting the truster or his heir on expiry of trust, ib. Trustee for creditors, mode of completing title of, 306. U. Ullimus h(cres, 35.3. Unilateral writs, 1. i[7(u'on, clause of, 11.3. Usury, 264. Utero, heir in, 467. V. Valued rent, 465. INHKN. 551 \'(issul, im'aniiig of term, 1.5. Ktl.iiioii bctwc't'ii Hiul superior, 5J-C0. C;iiii)oi refute wiilioiit consent, 8G. Verdict in services, -IGS. Vcsthi'i of provisions, 'Hi). Viliatioiis in deeds, difl'erent kinds of, 33. Erasures and deletions presumed in sub- .staiitialiliiis, ib. and 33. Not fatal, unless words essential, 33. EHect of executing deed in duplicate, ib. Interlineations form no part of the deed, ib. Blanks, 33, 3i ; cannot be fiHed up after execution, 3i. Writer oufilit to be mentioned, 36. Erasures in sasines. See. ib. Instru- ment may be re- engrossed, ib. Ert'ect of erasures in registered sasines, 36. Unstamped deeds, 37. W. Wadset, origin of, 257. A covert sale, 258. Form, ib. liights of reversion, 259. Register of reversions, ib. Pdivers of the reverter, 2(iO. Proper wadsets, ib. Improper wadsets, 261. Ward-lwldinq, 4-8. Wairandicc'SS, 208, 278, 316. See Char- ter, Disposition of sak, Heritable bond. Special settlement. White-bonnet, 1 66. Widow, provisions to. See Entail, Mar- riage- contract. Wife, ratification by, 188. Witnesses in deeds. See Writs. Wood, cutting of, by an entailed proprie- tor, 361. Writ, definition of, 1. Writer of a deed. See Writ. Writs, assignation to, 93, 211, 279. See Charter, Disposition of sale. Heritable bond. l'VV(V,s or deeds, division of, 1. Private, 2. Essentiids of, ib. Subject-matter, ib. Parties, designation of, ib. Shape, in rolls or bookwise, 3. May be jiartly piinteil, ib. Hules of attestation statu- tory, ib. Sealing, i. Act 1540, 5. Act 1579.6. Act 1593, 7. Act 1681, 8. Applicatioti of the statutes, 10. Sub- scription, 10. !\Iu->t be unassi^li'd, ib. With initials, II. With a mark, ib. By blind persons, 12. Subscription l»j notaries, 6, 1.3. Must know the party, ib. Heading of the deed, ib. Warrant to the notaries, ih. Form of their sub- scription, ib. Doquet, ib. and 14'. Parish ministers as notaries, 14 Uis- (jualificaiion of notaries, ib. Must every ])age be subscribed? 15. Instrumenlanj witnesses, ib. Who may be witnesses, ib. Must know the party, ib. Ought to see him subsciibe, ib. I\Iust sign unico conte.vlu, ib. Subsciibe on last page, ib. Cannot sign with initials, ib. Witnesses to sul)scription by notaries, 1 7. Witnesses need not know the contents of the deed, ib. Evidence of, in reductions, ib. Effect of non memini, ib. Testing clause, \d. Time of insertion, ib. Must be before production in evidence or regis- tration, ib. Ought to be filled up be- fore infeftmcnt on the deed, 106. Mode of filling up, 19. Records the number of pages, ib. Writer inserted before witnesses, ib. Statute not applicable to writer of the testing clause, ib. Where deed partly printed, ib. Designation of the writer, 20. Requisites, ib. May be a witness, ib. Omission cannot be supplied by party's acknowledgment, ib. Writer should be fiee of interest, 21. Date and place of subscribing, ib. ; not essential, ib. Deeds executed on Sun- day, ib. Designation of witnesses, ib. Requisites, ib. IMention of mar- ginal tiotes, 22. IMode of attesting tliem, ib. Whether mention of erasures sufficient, ib. Practical conclusions, 23. Recapitulation of foimsof attestation, ib. Exceptions from rules of attestation, 26. Holograph writs, 27. Deeds subscribed by a number of persons no exception, 28. Crown charters, 255. Retours, 468. See Delivery, Notarial instruments, Sasines, Vitiations. UViVs defective in solemnities, 25; cannot be supported liy evidence, ib. Prititcd by James Walker, C. J.inies's Court, Lawnmarkct, Edinbuigh. ERRATA. Page 13, last line, for " § 16." read " § 13. 3." 14, third line from top, insert " (/)." 22, third line from foot, /or " § 21." read " § 23." 26, second line from to\), for " formal " read " informal." 29, fourth line of the section, /or " whosoever " read " whosesoever." S3, for " Title III." read " Title IV." 86, seventh line from top, for " (4.) read " (5.)" 110, tenth line from foot, for " (xy read " (2)." 176, top line, for " § 121." read " § 122." 205, seventh line from top, delete " ('')." 215, eleventh line from commencement of section, for " disponer" read " disponee." 217, fourth line from top, /or " declaration " read " declarator." 269, twelfth line from top, /or " his creditor." read " this creditor." 318, eleventh line from ioot, for " grantee " read " granter." 319, eighteenth line from top, for " re " read " rei." 340, thirteenth line from top, delete " it contain," and in the following line, "for clauses, directed," read " clauses be directed." 406, eleventh line from foot, /or " relative " read " resolutive." 421, transpose notes (a) and (/^) 469, seventeenth line from top, for " general" read " special. 493, fifteenth line from top, for " (f) " read " (b)." ^A^^7. UC SOUTHERN REGIONAL LIBRARY FAfiLiTY AA 000 761 629 5