Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Elizabeth Barclay, Spouse to the Laird of Towie,
v.
The Tutor, as Heir of Tailyie, and Barclay of Auchredy

Date: 20 July 1669

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In a declarator of recognition of the estate of Towie, upon a gift granted by the King to the said Elizabeth; whereupon she craved the lands to be declared to belong to her, upon a disposition made to herself by her father, whereupon seasine followed; the lands holding ward of the King: It was alleged, That there could be no recognition; because the disposition, bearing the precept of seasine, did remain in the father's possession until he was upon death-bed, at which time infeftment was taken; which could not prejudge his heir of tailyie, it being null of the law, and reducible.

The Lords considered, in general, the case of recognitions, and found, That a disposition and a precept, granted by a vassal in his liege poustie, and delivered to the party, was a good ground of recognition; albeit the seasine taken thereupon was not until he was in lecto ægritudinis; seeing, as to the granter, he did all that was in his power, by subscribing a precept, and appointing a bailie to give seasine: But, where the right and precept was still retained in his own possession, and nothing done thereupon until he was in lecto, they did demur to give any decision; and in this case, depending before them, did ordain the Lord Fraser, to whom the disposition was delivered, to be examined upon oath anent the time of the delivery, and to what effect it was delivered to him: and, in the general, they did consider that there would be a difference in law betwixt rights made by a father to his own children, wherein there might be a reservation of the father's liferent, or where he might keep the same as administrator to his children; and writs, which were conceived in favours of strangers, which were never delivered till on death-bed, or did bear that they should be obligatory, as well delivered as undelivered. But the Lords gave no opinion of judgment, at this time, as to these cases.

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