If discontiguous lands, in different shires, have been erected into one barony by the Crown, base infeftment, by precept from the King's vassal, at the place appointed, is good for the whole lands.
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The La. Blairquhen, by a base right, holden of her father-in-law, who gave infeftment to her and her husband, his eldest son, of all his lands, (which were distincta tenementa, and lay discontiguous, in divers sheriffdoms), and which were united to his goodsir by the King, in a barony called the Barony of Blairquhen, and whereby the King appointed one sasine to be taken for all the lands, at the place of ———, to serve for all the lands united, notwithstanding of the discontiguity; the said Lady being infeft, as said is, base, by her father-in-law, and being seised at that same place of union which was contained and appointed in the charter of union granted by the King to her said husband's goodsir, and pursuing removing against the tenants, and the Viscount of Kenmuire compearing, and defending for certain of these lands, wherein he was infeft, and quarrelling her sasine of nullity, because it was taken at the place of ———, which could not be effectual to her, but for those lands whereat it was taken, and so many of the other lands as lay contiguous thereto, and could not be extended to those lands excepted upon, which lay discontiguous, and were naturally in another sheriffdom than that sheriffdom within the which these lands whereat she was infeft lay, and the union granted to her author, which designs that place for sasine to serve for all, cannot be effectual to her, and cannot grant power to her author to grant a base right (albeit his father had an union himself) to any other, with the privilege to take sasine at that place for these lands lying discontiguous, albeit the sasine was given to her of all the lands united by the first union of the King, except that base right so granted had been confirmed; and the pursuer replying, That her author's union behoved to be profitable to her, seeing she was infeft in the whole lands united by the King to her author's father, and she could take sasine no otherwise but at that place, which the King, in his union, made before her right, had appointed for all the lands; for if she had done otherwise, it might have been quarrelled, as not lawfully taken, for she is infeft in the whole lands, and not in a part; whereas, if she had been infeft in some part of the lands only, and not in the whole, the question had been greater, viz. If her sasine taken for a part had been good, if the lands had lain discontiguous from that place whereat she was seised; but being in all the lands united, and the union once made and granted by the King, her author might have given her such a right, which (albeit base) is lawful, without necessity of the King's confirmation, the King having granted the same once of before to her author's father;—the allegeance, in respect of this reply, was repelled, and, in respect of the said union preceding, the sasine being of all the lands, albeit base, was sustained, without necessity of any new confirmation.
1657. July 11.—In this cause, it being further alleged, for John Inglis and the Viscount of Kenmuire, whose tenants were convened in this judgment of removing, That they were infeft in the particular lands contained in their rights by public infeftment, holden of the King, and, by virtue thereof, these eighteen or twenty years in peaceable possession; which lands lay discontiguous, from the alleged place of union 30 or 40 miles at least; and the said public infeftment flowed from Josias Stuart, who was also publicly infeft by the King, which Josias Stuart's right flowed from a right granted by this pursuer's husband to the said Josias, which husband was served heir to his goodsir, who was infeft holden of the King, and died last lawfully infeft; whereas his father, who was the author of the pursuer, and her husband's conjunct infeftment, was never infeft in the lands, so that the pursuer and her said husband's infeftment of conjunct fee, being base, granted to be holden of his father, the granter, and who was never infeft himself, cannot be sustained as a valid right to remove these excipients, who were infeft by public rights, clothed with so long possession, specially in this possessory judgment, where the pursuer and her husband can never be able to allege, that their base infeftment, proceeding, as said is, a non habente potestatem, was ever clothed with possession of these lands excepted upon; and the pursuer answering, That her base right ought to be preferred, in respect it flows from her contract of marriage, and the said right granted to these excipients flows from her husband's right, which, albeit it be public, and flows to him as heir to his goodsir, and has no respect to his father, yet the same being so acquired by her husband, after the date of her conjunct infeftment, which the defender quarrels, it must be profitable, and accresce to her, and make her alleged base right become good to her, sicklike as if her conjunct infeftment had proceeded immediately from her husband, quo casu his supervening right, as heir to his goodsir, must accresce to her, quia jus superveniens auctori prodest successori; and this ground holding, as in law and equity it ought, there is no necessity to allege possession, but her right is good without possession;—the Lords repelled the exception, and sustained the pursuer's right, and preferred the same to the excipients' public right, seeing they found, that the acquiring of the right by her husband, as heir to his goodsir, behoved to be profitable to her, who was infeft, albeit base, before that acquisition, and the said base right was considered as if it had flowed to her from her husband's self.
1637. July 28.—In this action it was further eiked by the defenders to that exception proponed before by them, that the union ought not to be respected, the lands united being distinct baronies, holden of divers superiors, viz. the one of the King, and the other of the Prince, and the union appointing the sasine to be taken upon the ground of the lands holden of the Prince to serve for the lands also holden of the King, whereas they lay 40 miles sundry, and in divers sheriffdoms, and so against nature, and which can never be sustained as a warrant to the father to grant, to his son and his wife an infeftment of a base holding, containing the like union, that base right never being confirmed, and neither the wife nor the husband, nor their author, ever being in possession of the lands, whereas the defenders and their authors are publicly infeft, and, by virtue thereof, these eighteen years in possession, which ought to defend them from removing in this possessory judgment;—which allegeance was repelled by the Lords.
