Sasine of different Lands taken place at one only. - The same Person both Bailie and Attorney. - Sasine taken in the Night. - Notary's Attestation of the number of Leaves.
Hilton v. Lady Cheynes
Date: 24 February 1676 Case No. No. 25.
Where a sasine bore that the same person had been both bailie and attorney, it was sustained notwithstanding, as it appeared otherwise that this was a mistake.
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The Lady Cheynes being infeft in an, annual-rent upon a right granted by her husband, her sasine was questioned upon these grounds: 1st. That it was null, in so far as the bailie and attorney in the sasine were one person, who could not both give and take the sasine: And, 2d, The provision was during marriage, and after the creditor that did compete, his debt; and though it could be sustained, where there was no contract of marriage for a competent provision; yet it could not be sustained for the whole annual-rent, being exorbitant, her husband's estate and debt being considered.
The Lords, in respect it did not appear evidently, that it was a mistake of the notary, that the sasine did bear the same person to be both bailie and attorney, in the clause of tradition; and seing by the first part of the sasine, it was clear, that there was distinct attorney who did present the sasine to tie bailie; did therefore incline to sustain the sasine: but, before answer to that point, they ordained the parties to be heard upon the said other allegeance, and the relict to condescend upon her tocher and the rent of the estate, and the creditor upon the burdens.
Newbyth, Reporter.
Fol. Dic. v. 2. p. 363. Dirleton, p. 165.
