Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Anent Consolidating Superiority and Property
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1677, November 8.—Where a vassal holds of a subject, and buys the superiority, to the effect he may hold of the King, or succeeds as heir of line to his vassal, quteritur, How the superiority shall be mingled and united with the property, it being the more noble and sovereign right. For consolidating the property with the superiority the way is easy and known, by a resignation ad perpetuam remanentiam in the superior's hands; but how the superiority shall descend to be confounded with the property, is not so easy. Sir John Nisbet advised, that the vassal should dispone the property to a confident person; and, being so denuded of the property, that then he who was his superior in these lands should dispone to him the superiority; (but nudum jus superioritatis cannot be conveyed alone, being jus incorporeum, quod nequit per se subsistere, without the lands be also disponed cui inhæret; as was advised by Sir Robert Sinclar in Smeton Hepburne's superiority, who took a disposition of it directly from Sir A. Ramsay, as having right to all the apprisings on the estate of Waughton;) which being done, then the trusted person to retrocess him again to the property, by which the property became an accession only of the superiority. But I see no absurdity in the making the superiority to come to the property, and there were too many ambages et obliqui cuniculi in this conveyance. Why may not the superior resign the superiority ad remanentiam in the Exchequer's hands, or in fauvorem of the vassal; to the effect it may be extinct, and he may have none interposed betwixt him and the King, but he may immediately hold of his Majesty?
If he be heir to his vassal, quæritur, If a special service will consolidate the property, without any more. For, in other cases, if one die specially served without a seasine, the next heir enters not to him, but to him who died last infeft.
