Feus, before act 1606, secure against casualties of superiority.
Campbell v. The Laird of Auchinbreck, and the Earl of Argyle
Date: 16 November 1680 Case No. No 3.
Found as above.
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Campbell of Silvercraigs having apprised Auchinbreck's estate upon a debt, for which he was cautioner for the late Marquis of Argyle, pursued the tenants for mails and duties. Compearance is made for the Earl of Argyle, who alleged, That he, as donatar to his father's forefaulture, had the only right to the lands in question, and which were holden of the Marquis feu, and were not confirmed. The pursuer answered, That there needed no confirmation, in respect of the act of Parliament 1457, ‘Allowing feus of ward-lands.’ It was replied for the defender, 1mo, That that act of Parliament did only contain a declaration, that the King would confirm such feus, which cannot be extended to those who never demanded confirmations. 2do, The meaning of the act is expressed there, “In that it was only to secure against ward, that the feuer, though his superior fell in ward, should enjoy his feu, being set to a competent avail, upon payment of the feu-duty, even during the ward;” and, therefore, ward-feuers are only thereby put in the condition as if their superior had holden feu of the King, in which case the forefaulture of the superior would have made the feu return to the King. 3tio, There is a later act of Parliament 1503, cap. 91. by which, “During the life of King James IV. all Lords, Barons, freeholders, might set their lands in feu-farm without diminution of the rental;” so that alienation of the most part should not infer forefaulture, which shews that the prior act is not meant to extend to forefaulture. 4to, The said first act is rescinded in anno 1633, after which the lands were resigned in the superior's hands, and new infeftment taken thereon; so that, thereafter, any feus granted without the King's consent or confirmation are null. 5to, The King, by a commission under his Great Seal, for satisfying the Creditors of Argyle, did declare, “That the feus should be applied to the particular uses therein mentioned,” so that it is res judicata by the King: And, whereas, there is a practique alleged, decided in anno 1674, betwixt the Marquis of Huntley contra Gordon, No 2. p. 4170, sustaining feus of ward lands before 1633, it was but one decision upon a report, and was appointed to be heard again in præsentia, and was no further insisted in; but here there are specialities, viz. the resignation since 1633, and the King's declaration. It was duplied for the pursuer, to the 1st, That the act of Parliament inviting all persons to feu, is a more solemn consent than if the King had signed dispositions for that feu, and hath ever been so esteemed; so that the wards which have frequently fallen did never exclude a feuer, as being consented to by the King by this act. To the 2d, If it were a true gloss, that the act did only import that the King would confirm when desired, then all the feus which have no confirmation, could neither exclude ward, recognition, nor forefaulture, which was never pretended, either as to the ward, marriage, or recognition. To the 3d, The enacting of new acts doth never import that there was nothing done of that nature before. 2do, The act 1503 doth not only give power to set feus, but also to grant annualrents, which was not allowed by the first act, nor had it any such ground as feus for improvement of the ground, and therefore was but temporary; and it is clear, by that act, that the forefaulture there meant is not by Lese-Majesty, but by alienation of the major part of the ward-holding, which is the proper description of recognition; so that forefaulture doth only open and return the vassal's ward-holding, as it is a species of recognition against the nature of all feus; but, as forefaulture is a just penalty for rebellion, introduced by statute, by which the life, lands, and goods of all forefault persons fall to the King, it is extrinsic to the nature of feus, but only in so far as it comprehends a ground of recognition competent to all superiors, whether Prince or subject; as if the vassal should kill, wound, or invade his superior, it infers recognition, whereof rebellion against the King is the most atrocious kind, but should not be extended against the innocent vassals, who, upon the King's invitation, did give great sums of money to acquire feus of ward-land: And, as to the pretence of the parity, that the forefaulture of the King's feu-vassal would return the feu to the King free of sub-feus, it was duplied, That that case was never decided, nor any example shown that it took effect. 2do, Statutes can neither be restricted nor amplified a paritate rationis, but are strictissimi juris, which is a known principle. 3tio, There is no parity when the King sets his lands in feu, importing to be for the melioration, that the vassal should sub-feu, and commit the melioration to another without the superior's consent, and therefore the King might, upon just ground, allow his ward-vassal, who was not obliged to meliorate, to set feus for melioration, though he allowed not his own feuers, to whom he granted feus for melioration, to sub-feu for melioration without his consent; and therefore this case was fully debated both in the Outer-house and in præsentia, and most solemnly and unanimously determined by the Lords, albeit the Marquis of Huntly's curators gave in an appeal to the Parliament then sitting or current, yet the Lords were unalterable in securing the vassal's right, and the Marquis did judicially pass from the appeal; nor was there any stop of that decision, but an act extracted thereupon; and several other debates have since arisen upon Cairnborrow's having two distinct feus upon the same lands, which are also determined. Neither do the specialities alleged alter the case, for a resignation in favorem doth not alter, but continue the same feu; and as to the King's declaration, it is ever understood salvo jure.
The Lords found, that the feus in question being set before the year 1633, were secured by the act of Parliament 1457, and that the resignations thereof, after the act of Parliament 1633, did not alter the same, unless the resignations were ad perpetuam remanentiam, and that the King's declaration was salvo jure.
Fol. Dic. v. 1. p. 295. Stair, v. 2. p. 796.*** Fountainhall reports the same case:
Practiques which are not upon a full hearing in præsentia, cannot be a rule, and no practique is so obligator upon the Lords, but themselves and their successors, upon more convincing arguments, may alter them. The decision of a Sovereign Prince has the force of a law, l. 6. De Legibus.——The Lords found feus of ward-lands granted to vassals while the act 7th Parliament 1457 stands in force, viz. ay till 1633 that it was rescinded being set for the competent avail, (that is for a feu-duty), does exclude not only ward and recognition, but also forefaulture; and which the Lords had decided formerly, 12th February 1674, Marquis of Huntly against Gordon No 2. p. 4170; but if ward-lands were given out by a subaltern blench holding, this would not defend against any of these casualities.
