In questions between parents and children, who understood to be fiar.
Subject_3 SECT. III.
Children infeft as Substitutes.
Laird of Lammington v. Moor
Date: 23 July 1675 Case No. No 45.
An heritable bond being payable to a father, and after his decease to his two sons nominatim, and all three being infeft unico contextu, the father was found fiar.
Click here to view a pdf copy of this documet : PDF Copy
The deceast Laird of Lammington having granted bond for 4000 merks to James Menzies of Enoch, bearing, ‘The sum to be borrowed from the said James himself, and in name of his sons;’ and, therefore, it is payable to the said James, he being on life, and failing of him, by decease, to John and William Baillies his two sons, and failing one of them, to the other surviving, his heirs or assignees; wherein there is a precept of sasine for infefting the father and two sons, who were accordingly infeft. The bond in security is disponed by the said James Menzies to Grizel Baillie and John Moor her husband in liferent, and to their children in fee. This Lammington grants bond of corroboration, containing requisition; whereupon requisition being used by the said Grizel and her husband, they charge Lammington, and he suspends, on this reason, that the said Grizel and her husband are only liferenters, and their children are fiars, to whom only payment can be made.
The Lords decerned Lammington to pay the sum to the use of the children, but appointed it to be put in the clerk's hands, that security might be taken therefore to the parents in liferent, and to the children in fee, by the sight of the Lords.
Lammington further alleges, that he being charged upon a bond of corroboration of a former security by infeftment, he was not obliged to make payment to the chargers, because they were never infeft, but had only an assignation from James Menzies the father, who was but liferenter, and his two sons were fiars, and were not only heirs-substitute, because they were infeft in their father's life, and in the same infeftment with him. 2do, Lammington was not obliged to pay till his lands were disburthened of the infeftment by resignation of persons infeft.
The Lords found, that James Menzies the father was fiar, and, during his life, might uplift and dispone at his pleasure; and that the two sons were but heirs substitute, and their infeftment did supply the necessity of infeftment as heir, after his father's death; but found that Lammington ought not to pay, till his lands were disburdened by resignation of a person infeft as heir both to the father and to the sons, they being all dead, and one person falling to be heir to all the three, that no question might arise to Lamminton, to whom the fee belonged.— See Service and Confirmation.
