[1749] Mor 10251
Subject_1 PERSONAL and REAL.
Subject_2 SECT. V. Clauses burdening Conveyances.
Date: Elizabeth Montgomery, Factrix for M'Vicar her Husband,
v.
Cochran and Ker
10 February 1749
Case No.No 72.
A clause in a feu-charter containing a disposition to the vassal of all the casualties of superiority found effectual against a singular successor.
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Crawfurd of Fergushill, vassal to the Earl of Eglinton, in the lands of Hill and Megswell, sub-feued the same to James Cochran in 1697, at the yearly feu-duty of L. 24; and in 1726, Neil M'Vicar became purchaser from the heir of Crawfurd, with consent of the Earl of Eglinton, of the lands of Fergushill, and superiority of Hill and Megswell by disposition containing a clause of absolute warrandice.
When five or six years of the feu-duty had run on unpaid, Elizabeth Montgomery, as factrix for Neil M'Vicar her husband, brought a declarator of tinsel of the feu, ob non solutum canonem, on the 246th (250) act of the Parliament 1597, wherein she called the said James Cochran the vassal, and also Ker of Crummock, who stood infeft in the lands upon an heritable bond, for a sum near the value.
Their defence was, That the sub-feu charter from Crawfurd, the pursuer's author, to Cochran, contained a disposition to the vassal of all and sundry the casualties of the superiority of the lands falling, or that may fall or become in the hands of the said Crawfurd, the disponer, or his heirs or successors, as superiors thereof, and that either as liferent escheat, non-entry, or by contingency of not timeous payment of the feu-duties therein specified; all which was also verbatim engrossed in the sasine following thereon.
Though this case differed, in several respects, from that determined between Nasmyth and Storry of Bracco, (infra, h. t.); as, on the one hand, in this case, there was no clause burdening the conveyance of the superiority to the pursuer, with the feu-right, nor no exception from the clause of absolute warrandice; and, on the other hand, the clauses in favour of the vassal in the feu-charter were not by way of obligation, but by way of disposition, and engrossed in the sasine; yet the general point was again resumed upon the Bench, How far the casualties could, consistently with the principles of the feudal law, be separated from the superiority; which, by a great plurality, it was thought they might, even such as were essential to the feu. Thus a feu-duty may, by the superior, be feued away to another, and was commonly granted by the Crown, till, by the act 239th (243) of the Parliament 1597, the alienatio feudifirmæ feudifirmarum of any part of the annexed property was discharged, and may, at this day, be granted by any subject superior: Neither could wards be taxed, if the casualty following a ward-holding could not be separated from it. And this the Court found, notwithstanding the answer made by those who appeared to be of a different opinion, that it did not follow, that, because a feu-duty could be given away, therefore a feu-charter might be granted, bearing, that there should be no feu-duty.
But this point cannot be said to have received a direct decision, in respect of a distinction, which in this case occurred, to be made between such casualties as are essential to the feu, and such as are only introduced by statute; that whatever difficulty there might be as to the first, there could be no good reason assigned why the last might not be renounced; and such is this casualty of the feu's reverting to the superior ob non solutum canonem, as it had its rise from the act 246th, (250) Parliament 1597, before which statute it was not known in our practice without paction: And even when introduced by that statute, it is only declared to have the same effect, sicklike as if a clause irritant were specially engrossed in the infeftment of feu-farm; and as before the statute, such clause in the charter might have been renounced by the superior, cum unicuique liceat juri pro se introducto renuntiare; so the statute does, in that respect, make no difference, as it is a statute solely in favour of the superior, and to which, therefore, the rule does not apply, that pactis privatorum non derogatur juri communi; and which cannot be better illustrated than from the case of the statute 1685, concerning tailzies, which provides that irritant clauses, not inserted in the precepts of sasine, and procuratories of resignation, should not be effectual against creditors and purchasers; and which, therefore, as being in favour of the whole nation, cannot be dispensed with by any clause in the tailzie; but were there a clause in a tailzie, that the heir's not inserting the irritancies, &c. should not infer an irritancy of the heir's right, it would be effectual, though the creditors would be safe.
The Lords found the clause effectual against the singular successor.
*** D. Falconer's report of this case is No 9. p. 4180. voce Feu.
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