Subject_1 PERSONAL and TRANSMISSIBLE. Subject_2 SECT. III.
What Rights go to Assignees.
Ogilvie v. Kinloch
Date: 29 January 1673 Case No. No 65.
One who disponed certain lands to be holden of himself, by ' the disponee, his heirs and assignees,' was found obliged to receive and infeft the assignee.
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David Kinloch having, by a minute betwixt him and Andrew Wadder, disponed certain lands to Wadder, to be holden of Kinloch feu; Wadder assigns the minute to Mr James Ogilvie, who pursues for extension and implement of the minute to him as assignee. The defender alleged, That, by the minute, he having disponed to Wadder, so as to remain his own vassal, whom he had chosen; Wadder could not, without his consent, force him to accept of another vassal; much less of Ogilvie, who was not in the terms of friendship with him. It was answered, That the pursuer oppones the minute, whereby the lands are disponed to Wadder; and albeit neither the heirs nor assignees are expressed, yet, in a subsequent clause, it is expressed, that the lands are to be holden of the disponer by Wadder, his heirs and assignees; and it is commonly known, that, albeit superiors be not obliged to receive the singular successors of their vassals, by resignation or confirmation, even though the vassal's right be expressly granted to heirs and assignees; yet the inserting of heirs and assignees operates this, that, before infeftment be taken by the first acquirer, he may effectually assign his disposition or precept to any other, whom the disponer must receive.
The Lords found the defenders obliged to receive the assignee, in respect the minute did mention assignees.
1673. December 23.—Bandoch having obliged himself to grant a feu to one Wadder, of a piece of land, Wadder obtained decreet, and charged him. He suspended, and the charger having assigned the bond to Mr James Ogilvie, he insists in the charge, for granting the feu to him as assignee. It was alleged, That the obligement being in favour of Wadder to be his vassal, he could not obtrude a stranger, who was not in friendship with Bandoch; 2do, Bandoch having consigned a disposition in favour of Wadder, it was in the same case as if Wadder had been infeft; and then Bandoch could not be forced to enter his assignee, without a year's rent, for the entry of a singular successor.
The Lords repelled both these reasons; and found, that the obligement being in favour of Wadder, his heirs and assignees whatsomever, he might assign it to whom he pleased; and that it was to be performed to the assignee in the same case as to the cedent, without any entry, seeing the cedent was never infeft.
Fol. Dic. v. 2. p. 76. Stair, v. 2. p. 163. & 246.*** Gosford reports this case:
1673. January 29.—David Kinloch of Bandoch being obliged, by a bond, to obtain from his father a sufficient infeftment of the mill and mill-lands of Aberbrothic, to be holden feu of himself, to Andrew Wadder and his heirs, and to enter them for payment of L. 20 Scots; whereupon being charged, and suspension raised, compearance was made for Mr James Ogilvie of Clunie, who had obtained assignation from Andrew Wadder, and craves that the disposition may be granted to him and his heirs, in place of his cedent. It was alleged for the suspender, That he being obliged to infeft Wadder and his heirs, without mentioning his assignees, that he was not obliged to grant a right to him, seeing his minute and bond being in favour of a new vassal and his heirs, there was electio personæ et familiæ; and it was not in the power of the new person chosen to be the vassal to obtrude upon the superior another, specially this Ogilvie, who was of greater quality, and with whom Bandoch had several pleas and lawburrows standing against him; 2do, If Wadder was infeft, which he was willing to grant, upon his resignation, he was not obliged to infeft Ogilvie, or any other, unless he were charged upon a comprising or adjudication, quo casu, he would get an year's duty. It was answered for Ogilvie, That, albeit infeftment were passed, the superior was not obliged to accept a resignation in favour of another; yet, so long as the bond to grant infeftment remained a personal bond, it might be assigned or comprised.—The Lords did, notwithstanding, find the letters orderly proceeded; which was hard.
