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Recognition is not incurred unless the major part of the ward-fee is alienated by deeds, consisting together at the same time.
A wadset being granted of several distinct tenements, one of which held ward, the ward-lands were found to recognosce, though the other subjects were of more value than the wadset sum.
Redeemable rights though the debt be paid before the concourse of other alienations, yet if not actually renounced, do come in computo to make up a major part, and to infer recognition.
Sasines which are intrinsically null, as wanting essential solemnities, are not to be respected as grounds of recognition.
Fol. Dic. v. 2. p. 313. 314.
*** P. Falconer's and Harcarse's reports of this case, are No 60. p. 6467. voce Implied Discharge and Renunciation.
*** Sir P. Home also reports the same case:
In the declarator of recognition at the instance of his Majesty's Advocate against the Creditors of the estate of Cromarty, the Lords decided these points; 1mo, That alienations, though without consent of the superior, yet, if they be confirmed before the major part be analzied, cannot recognosce themselves, nor come in computo to make the recognition as to other lands; 2do, That a confirmation, after a major part is alienated, and before the gift, doth secure the rights confimed, but must come in computo to make up the major part, for the recognoscing of what is not confirmed; 3tio, That a novodamus doth so secure anent a recognition, that all the alienations before the novodamus cannot come in computo to make up the ground of recognition; 4to, That notwithstanding of the infeftments upon which recognition is craved be likewise of lands of different holdings, and belong to different heritors, must be considered as a ground of recognition quod valorem of the whole sums whereupon infeftment was taken, without respect to the relief that might be expected out of the other lands; 5to, The Lords repelled the allegeance, that the infeftments were in trust, as it was qualified, viz. that they were in the vassal's charter-chest, and that he detained the possession, except that the vassal's fraud or dole were instructed, or that the gift were to the vassal's behoof; 6to, The Lords repelled the defence founded upon the resignation made by old Cromarty in favours of his son, albeit bearing a confirmation of what relates to rights made to the vassal, and not to rights made by the vassal; 7mo, Repelled the defences founded upon the inhibition, which was prior to the deeds made use of for making up the recognition; 8vo, Found, that the infeftments that were habili modo extinguished, before the concourse of the major part, cannot come in computo; 9no, That sasines which are intrinsically null are not to be respected as grounds of recognition.
