Grants from the Crown. - Annexed Property. - Power of granting Jurisdictions. - Power of Revocation.
The King's Advocate v. The Earl of Morton and Viscount Grandison
Date: 25 February 1669 Case No. No 13.
Annexed property cannot be alienated.
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The King's Advocate pursues a reduction of the rights of the Earldom of Orkney and Zetland, granted by the deceased King Charles I. or by this King himself to the Earl of Morton or Viscount of Grandison, and produces a contract betwixt the King and the Earl of Morton in anno 1643, and a charter following thereupon, whereby the lands are granted and disponed blench, with several extraordinary privileges, as having right to the bullion and other customs of goods imported there; and also a charter anno 1646 by the King to the said Earl, relating to a dissolution in the Parliament 1644, containing a novodamus, and bearing also blench; there is also produced an infeftment granted to the Viscount of Grandison, and after the said infeftment, a ratification by the Parliament 1661. In the which ratification, there is contained a dissolution of the Earldom of Orkney and Zetland in favours of Grandison, wherein also the dissolution formerly made in favours of Morton in anno 1664, is particularly rescinded, upon this consideration, that neither the King nor his Commissioner were present in the Parliament 1644, and that his annexed property could not be disponed nor dilapidate without an express act of his own, ratified by Parliament. After this dissolution in favours of Grandison, the King granted no new infeftment to Grandison; the advocate having holden the production satisfied with the writs produced. Morton and Grandison compeared not at all, and some others having public rights from them being called, did also pass from their compearance, and submitted to the King's favour; and compearance being made for some of the vassals holding of Morton, they were not admitted, because they produced no writs to instruct their interest; so the Lords proceeded to advise the reasons of reduction, which were upon these points; 1mo, That by the law, and several particular acts of Parliament, the patrimony of the Crown being the lands and customs annexed to the Crown, might not be disponed by the King, unless the samen (upon weighty motives and considerations) had been dissolved by his Majesty and the Parliament, and dissolutions made after infeftments are not valid, Parliament 1597, cap. 236.; and by the 234th act of that same Parliament, the annexed property cannot be set otherwise but in feu-farm; so that the Earldom of Orkney being annexed to the Crown, by the annexation produced in process, and the contract and charter 1643 being before any dissolution, is absolutely null; and the infeftment in anno 1646, albeit relating to a dissolution in anno 1644, yet no such dissolution is found in the records; and though it were, it is rescinded in the ratification in favours of Grandison in the Parliament 1661, upon so weighty a reason as the King or his Commissioner not being present; and, because the Parliament 1644 is rescinded by the Parliament 1661, wherein, albeit there be a salvo of private rights, yet that cannot reach to the patrimony of the Crown, especially seeing in that same Parliament 1661, his Majesty having revoked all deeds done by him or his father since 1637, which, by the laws of the nation, he might not do to the derogation of his honour or crown, the Parliament has ratified the same revocation as to all rights granted since 1637, contrary to the laws and acts of Parliament preceding 1637; and likewise by an express act of Parliament it is provided, that no ratification in Parliament shall prejudge the Crown or supply a dissolution, and that none of the King's customs (which are also annexed) can be effectually gifted.
The Lords found these reasons relevant and proven, and reduced all the rights produced before the dissolution anno 1661, since which there is no infeftment granted.
Fol. Dic. v. 1. p. 524. Stair, v. 1. p. 614.*** This case is reported by Gosford:
February 28.—In the reduction and declaration pursued against the Earl of Morton and others, for reducing the right of Orkney and Zetland, and especially a contract of alienation made to the Earl's grandfather in anno 1643, with the right made to the Viscount of Grandison to the behoof of the Earl of Morton and his heirs, by the King in anno 1662; the libelled reasons being upon the acts of Parliament King James II. and King James VI. anent the annexed property, that it could not be disponed but by decreet of Parliament and after dissolution, and could only be disponed to be holden feu, wherein the rights foresaid made to the Earl of Morton were defective; the defenders having all passed from their compearance, the Lords having advised the reasons and declarator, did sustain the same for reducing the right of property. But, as to all the bygone rents of the lands which had been intromitted with, and for which decreet was craved conform to the said acts of Parliament, they did delay to decern, seeing the defenders were not in mala fide to possess; and that the act of Parliament, as to bygone intromissions, had never been in observance. And the King's advocate having declared, that he insisted primo loco in the reduction and declarator of property and upon the acts of Parliament and laws concerning the annexation and conditions thereof; the decreet was ordained to be extracted.
