Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Doctor Borthwick
v.
The Earl of Crawford

Date: 16 February 1676

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The Earl of Crawford granted bond to Elizabeth Corstorphine and ———— Gourlay, mother and grandmother to William Borthwick, bearing the sum received in the name of the said William; and obliging the Earl to pay the same to the mother and grandmother, in liferent, and to William, after their decease, his heirs and assignees. But in the same bond, there is a precept of seasine for infefting the grandmother and mother in fee; and seasine given to them accordingly, without mention of William. But thereafter, the mother and grandmother dispone the annualrent to William, acknowledging that they were infeft in fee by error; and that, by the personal obligement, William was to have been in fee; and therefore they resign in favours of William: whereupon he is infeft, and now pursues a poinding of the ground.

It was alleged for the Earl of Crawford, That there was a transaction betwixt the mother and grandmother and him, whereby they accepted lands for the sum, and entered in possession thereof. So that, if they had the right of fee, the satisfaction made to them must evacuate this right; and the pursuer cannot quarrel the same; because he acknowledges their right of fee, being infeft upon the resignation. And, if they had no right of fee, he hath no real right, but only the personal obligement; which is no title for poinding of the ground.

The pursuer answered, That the mother and grandmother had, in their person, by their infeftment, a title of fee; but which being by error and ignorance of the writer, might, upon that ground, be legally reduced; and they ordained to denude themselves in favours of the pursuer: and they having done the same of consent, acknowledging the error, the pursuer hath acknowledged their title of fee de facto, but not de jure. So that the defender cannot quarrel the infeftment that he himself had given; and, if the pursuer's title should not be sustained, but be put back to take a new infeftment, it would be ineffectual; because the Earl's estate is carried away by expired apprisings.

The Lords sustained the pursuer's title for poinding of the ground.

Vol. II, Page 416.