Method of obtaining infeftment where property and superiority coincide in one person. - Method of obtaining it by a singular successor, after resignation is accepted of. - Where the precept does not specially mention the lands. - Method of infefting a Remainder-man. - Where a disposition is adjudged, not containing precept of sasine. - Base infeftment competing with a public right.
The Daughters of Mr James Morton Supplicant
Date: 26 November 1668 Case No. No 34.
Found in conformity with the above.
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The daughters and heirs of Mr James Morton gave in a supplication to the Lords, making mention that their father being infeft in an annualrent, effeiring to the principal sum due to him by the Lord Balcombie, they did thereafter obtain decreet for the principal sum, and thereupon apprised the property wherein they stand infeft, holden of the King; in which apprising there is a reservation exprest, without prejudice of the infeftment of annualrent; and now being desirous to be infeft in the annualrent, as heirs to their father, and that themselves were superiors by the infeftment on the apprising, and conceived it proper for them to infeft themselves, did therefore desire the Lords to grant warrant to direct precepts forth of the Chancery, for the King to infeft them.
The Lords having considered the case, and argued the matter amongst themselves, whether it were more secure and legal that they should be infeft by the King upon their supplication; or that they as having right to the property by their infeftment on the apprising, should grant precepts for infefting themselves in the annualrent, as heirs to the annualrenter; or whether their infeftment in superiority would consolidate the annualrent without infeftment; the difficulty against the King's infefting of them was, that the King infefts none but those that hold immediately of him, or upon the disobedience of the immediate superior, supplendo vices.
To which it was answered, That the King may supply the place of the immediate superior, either when he will not, or cannot infeft his vassal, and the petitioners conceive that in this case they cannot; and both being extraordinary remeids, the Lords may do the same, and have done it in former cases. The difficulty as to infefting themselves was, that the right of property, and jus nobilius, did extinguish the right of annualrent; and yet the right of property may be reduced, and then they would be necessitated to defend themselves by the annualrent; and therefore it is not an absolute extinction, but in tali casu; and therefore they have reserved the same in the apprising. The difficulty as to the third way was, that if the right of the superiority should be reduced, they should be without infeftment at all.
The Lords found that they might either infeft themselves by their own precept, or might get precepts from the King, as desired, periculo petentium, or they might make use of both together.
Fol. Dic. v. 1. p. 471. Stair, v. 1. p. 567.*** Gosford reports this case:
There being a bill presented for three daughters of the deceased Lord Balcomie, who were served heirs to their brother, who had right to an annualrent effeiring to 7,000 merks principal, out of the lands of Balcomie, which were holden base of their father, the granter; as likeways, who had comprised the same sum, the property of the said lands, and the superiority of the said annualrent; whereupon they craved that the Lords would ordain the director of the Chancery to give out precepts for infefting them in the said annualrent, because they themselves being superiors, could not give a precept of sasine for infefting themselves. The Lords having considered the desire of the bill, after a long debate anent the way how they might be validly inteft, as likeways two practiques deduced, whereby the like was ordained in favours of a prebend of church lands, No 33. p. 6917, and in favours of the Earl Bothwell, who was a Lord of erection, which they found not to quadrate with this case; as likewise, that the said sisters might come to a valid infeftment by granting bond, whereupon an adjudication might be recovered, and so infeftment gotten in name of a third person; they at last did grant the desire of the bill, but ordained the precept to bear salvo jure cujuslibet.
