A sasine granted by Bailies to a singular successor, bearing to be upon resignation, was found not to defend against reduction, without producing the disposition.
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Margaret Liddel having been married upon Mr William Johnstoun, and being heretrix of certain tenements in Aberdeen, in June 1628; there is a sasine given by the Bailies of Aberdeen, in favours of her two sisters, upon her resignations; and in anno 1633, another sasine upon the resignation of these sisters, in favours of the said Mr William Johnstoun and Margaret Liddel in conjunct fee, and the heirs between them, which failing, his heirs; William Mitchel, as heir to the said Margaret Liddel, having pursued reduction and improbation against Cowie and others, who now have right to the tenements and having obtained certification against all original rights granted by the said Margaret Liddel, except the said sasine, insists now upon this reason of reduction, That there being no disposition, charter, nor precept, for denuding Margaret Liddel, the sasine is but assertio notarii, without warrant, and so is null, and all the defender's rights depending thereupon fall in consequence. It was answered, 1mo, That the original sasine is a valid right, because though after so long a time, the warrant thereof is not produced, yet it is sufficiently adminiculated by the sasine, in favours of Margaret Liddel, bearing her to be personally present, and accepting a liferent right from her sisters, which clearly imports that they had right; 2do, Though the assertion of an ordinary notary be not sufficient, yet the sasine of a Town-clerk, which remains in record in the Town books, and much more two such sasines, ex intervallo, are sufficient; 3tio, There is produced by the pursuer a revocation of the infeftment granted by her to her sisters, and the disposition whereupon it proceeded, upon that ground, that the same was extorted by her husband by force, which clearly acknowledges that such a disposition was; 4to, It is offered to be proved, that it is the common custom of this burgh, that infeftments pass upon resignation, without any warrant; and this pursuer having lain so long silent, the Bailie, Town-clerk, and witnesses in the sasines are all dead, whose oaths would have adminiculated the same, if they were alive.
The Lords repelled all these defences, and found that the original right being only a sasine by Margaret Liddel was null, and was not adminiculated by the sasine in her favours, which laborabat eodem vitio, having no warrant for that adminicle, both being but the assertions of the Town-clerk; and found that the revocation, albeit it mentioned a disposition, yet that the intent thereof being only to revoke the particulars exprest, was but style, and that the sasine did not relate to a disposition, but secundam chartam confectam; so that certifications being obtained against both dispositions and charters, the said revocation was found no adminicle, nor was the custom of the burgh found relevant.
Fol. Dic. v. 2. p. 246. Stair, v. 2. p. 87.*** Gosford reports this case:
In a reduction at Cowie's instance, as heir to one Margaret Mitchel, of a disposition of a tenement of land in Aberdeen, alleged made by her, and infeftment following thereupon, wherein for satisfying the production there being only produced a sasine under the Town-clerk's hand, bearing that it was upon resignation in the hands of the Bailie, and therefore craved to be reduced, as being without a warrant; it was answered, That it was offered to be proved, that by the custom of Aberdeen such infeftments were valid without any other warrant; 2do, They did produce an extract of a revocation made judicially, bearing that the said Margaret did acknowledge that she had disponed the said tenement during her marriage, and did bear likewise that she did it for fear of her life, being threatened. The Lords did repel the first answer, and found that no such pretended customof a burgh-royal could be sufficient to take away an heritable right of land; and they did likewise repel the answer founded upon the revocation, seeing as it did acknowledge a disposition, so it was with that quality that she was forced thereto, which they found could not be divided, and that the pursuer had no necessity to prove the force; and so the reduction was sustained, unless the defender would prove homologation of the right and disposition by some other deeds, which were sufficient to infer the same.
