Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
The Lord Lyon v. Alexander Forbes, of Auchintoull
1673.
July.
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My Lord Lyon pursuing declarator upon a gift of recognition of the lands of Auchintoull; alleged, the right made by Alexander Forbes to Ja., his son, of these lands, can infer no recognition; because it is to his apparent heir, and who is alioqui successurus. 2do, For the base infeftments granted by Ja. to sundry persons, far beyond the worth of the lands, neither can they infer recognition; because only granted by Ja., who was never the king's vassal, but was infeft base holden of his father.
Answered,—Though the infeftment given by the father to the son can be no ground of recognition, yet those made by the son must be as good a ground for it as if they had been made by the father, who is the King's immediate vassal, to strangers; because the fee goes, by this, extra familiam vassalli, and the vassal becomes unable, in construction of law, to serve the superior: else a compendious way shall be laid for frustrating all recognitions; the father shall infeft his son base, and he shall alienate without acknowledging the superior: which were most absurd; for the superior's interest shall be evacuated, himself contemned, and the vassal disabled to perform the services prestable by him to the superior: and it should be all one to the superior whether the fee be transmitted immediately to strangers by the vassal, or first to his son, and then by him to strangers; contrary to the solid and just maxims of law, Quod directo non licet, nec per ambages fieri potest. This is a pretty question.*
Advocates' MS. No. 417, folio 224.
* In July 1674, the Lords found the alienations made by the son, though he was only infeft base, were a ground of recognition.
