Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Thomas Ogilvie of Logie
v.
Sir John and David Mountcreiffs of Tippermalloch

Date: 6 July 1677

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In a declarator of recognition, at the instance of Ogilvie of Logie, upon this reason, That the lands of Logie and Banfarge being held ward of the Marquis of Douglas, by Mr David Mountcreiff, who was heritor thereof, and disponed three parts of five to be holden base of himself, whereupon infeftment followed; and Sir John and David Mountcreiffs, and the Lady Reries, who acquired the said base right, having disponed the same to James Ogilvie of Logie, by double infeftments; one to be holden of themselves and the other of the Marquis of Douglas, by resignation or confirmation, to be passed upon Ogilvie's own expenses; he finding that the Marquis refused to enter him his vassal, was forced to take a gift of recognition; and thereby having good right to the lands, craved, that the same might be declared, and that he should be free of the price of the lands; at least, that they should be liable upon the warrandice.

It was alleged for the defender, That the lands could not be recognosced upon the grounds libelled: 1st. Because the seasines whereupon the recognition is craved were lawful; because the same were granted, and the lands disponed to be holden feu, before the Act of Parliament discharging vassals of ward lands, to set the same free without consent of the superior; which was allowed by Act of Parliament King James III. 2d. As it was leisome by the law, so the charter granted by the Marquis of Douglas, to Mr David Mountcreiff, did contain a special privilege that it should be lawful to him to infeft tenants in the said lands as freely as Alexander Wishart of Logie might have done by his charter granted by the Earl of Angus in anno 1511; in which it was declared that he might do the same without any peril or hazard. 3d. The pursuer was expressly obliged to procure his own confirmation upon his own charges and expenses.

It was replied to the first, That, by the Act of Parliament James III, when the feudal law, whereby this case must be determined, all subinfeudations must be ad decorandum, and making the lands better as to the superior: and, by subsequent Acts of Parliament, the same were declared void being granted without the superior's consent; but so it is that, by this base infeftment granted to the sub-vassal, the feu-duty payable yearly is only one merk Scots; whereas, by our law and practick, the least feu-duty in the case of change was a year's duty, to which the lands were retoured, and so cannot hinder recognition.

It was answered to the second, That, albeit the charter 1511 gives power to dispone to sub-vassals without any peril; yet that could only be interpreted as to the change of the holding: but here, the reddendo and feu-duty being so inconsiderable, that the whole benefit of the superiority is of no value, it must, in law, infer a ground of recognition.

It was replied to the third, That, albeit the pursuer was obliged to infeft upon his own charges, yet, seeing the Marquis was not obliged to receive him vassal, for the reasons foresaid, as having right by recognition; whatsoever sums of money the pursuer did pay, in relation to that hazard, as well as his entry; he ought to be refunded, and the recognition declared.

The Lords, having considered the charters whereupon the declarator was founded; with the obligements in the disposition to infeft; did find, That the pursuer might justly retain out of the price for the gift of recognition, which fell due to the superior, by disponing the lands feu for a merk Scots yearly, as a feu-duty; which was not lawful, and could not be under a year's duty, according to the retour of the lands: but, as to what was paid for entering vassal to the Marquis, which could only be interpreted a year's duty, if he had been charged upon an adjudication or comprising, they found, by his obligement to infeft himself, he could have no retention.

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