Symbols and Formalities of Infeftment of Annual Rent.
Lady Lamertoun v. Laird of Polwart
Date: 23 December 1680 Case No. No. 1.
A sasine sustained, tho it did not repeat the precept, and bore only deliverance of the ground.
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Alexander Hume of Hutton-hall, and Elizabeth Hume, his spouse, and longest liver of them two, being infeft in the barony of Halyburtoun, to the effect, that the longest liver might uplift 600 merks of the readiest of that rent; the wife having survived, assigns this right to the Lady Lamertoun, who pursues the tennents. Compearance is made for the Laird of Polwart, who has bought the lands, and alleges, that the sasine granted to Hutton-hall and his spouse is null, being in effect an infeftment of an annual-rent, and bears not the delivery of a penny money, which is the symbol of an annual-rent; and though it were an infeftment of property, yet it is null, because it did not bear, “Delivery of earth and stone,” which is the necessary solemnity and symbol of an infeftment of property, but only deliverance of the ground of the land, according to the precept, which precept is not engrossed in the sasine, but related only; and if the fixed formalities of sasines be dispensed with, and general words sustained in place thereof, it will be of most dangerous consequence for the lieges to alter the constant stile, to sustain the deeds of ignorant and insufficient notaries; for then if the sasine should only bear a narrative of a precept, and that sasine were given conform thereto, it might upon the same grounds be pretended sufficient. It is true that Durie observes, “That an old sasine clad with possession, was sustained upon general terms, without expressing the special symbols and formalities,” which does not quadrate with this case, where the sasine is recent, and little or no possession. It was answered for the pursuer, That Whatever might be alleged in a competition to prefer a more solemn and formal inferment, yet Polwart is not in that case, having acquired from Blaikiter, and the matter being litigious with his author, the Lords did first by a sentence of the Outer House, and then by a deliverance in præsentia, upon a petition for Blaikiter, sustain this sasine, though the same allegeances were then proponed, yet it is now res judicata. And albeit the notary might be censurable for not exact keeping of the style and form, yet the sasine cannot be thereupon annulled.
The Lords, as before, sustained the sasine, albeit they inclined to depose the notary for altering the style; but they found that he was dead.
