Confirmation of the Radical Right, whether it Validates all the Branches.
Colonel Maine v. Lady Earlston
Date: 17 March 1685 Case No. No 12.
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A party before his committing perduellion, having resigned his estate in favour of himself in liferent, and his son in fee, adding this general clause, “with and under the conditions and provisions contained in the procuratory of resignation”; and having, in that procuratory, expressly reserved his Lady's liferent infeftment, the Lords, in a competition betwixt her and the donatar of the forfeiture of her husband, found, That though the reservation in the public infeftment was in general terms, yet the Lady's liferent being particularly reserved in the procuratory of resignation, to which the general clause related, was equivalent to a confirmation; and therefore preferred the Lady to the donatar.
Fol. Dic. v. 1. p. 193.
*** See The particulars of this case by Fountainhall, voce Base Infeftment, No 39. p. 1308.
*** Sir Patrick Home reports the same case, dating it in March 1684.
Colonel Maine having obtained the gift of forfeiture from the King, of Earlstoun estate, and having pursued for mails and duties; there being compearance made for the Lady Earlstoun, who craved to be preferred to the rents of her jointure lands, by virtue of her infeftment being clad with possession before the crime was committed for which, her husband was forfeit, her husband's possession, fictione juris, being her possession;—Answered, That a base infeftment cannot secure against a forfeiture, unless the same had been confirmed by the King superior, or that the Lady had been publicly infeft upon her husband's father's resignation, who was the granter of the liferent right, as was decided November 1682, Dalzell against Caldwell, voce Superior and Vassal. —Replied, That the right was confirmed, in so far as by an infeftment under the Great Seal, proceeding upon the Lady's husband's resignation in favours of himself in liferent, and his son in fee, the Lady's liferent is reserved, which resignation is equivalent to a confirmation; seeing a liferent right may be constituted by a reservation.—Duplied, That the said infeftment does not bear a reservation of the Lady's liferent in particular, but only in general terms, with and under the conditions and provisions contained in the procuratory of resignation; and albeit the Lady's liferent be reserved by a provision in the procuratory of resignation; yet, unless it had been expressed in the infeftments following thereupon, it cannot be sustained against the donatar, who is a singular successor.—Triplied, That the general clause (under and with the conditions and provisions, restrictions and reservations,) contained in the procuratory of resignation, being insert in the infeftment under the Great Seal, and the Lady's liferent being particularly reserved by a provision in the procuratory of resignation; it is equivalent as if it had been particularly exprest and reserved in the infeftment; seeing a general relative clause in the infeftment doth comprehend all particulars to which that general clause relates, and is equivalent as if it had been particularly ingrost and repeated in the infeftment. And the decision in the cause of General Dalzell against Lady Caldwell does not meet this case; the Lady Caldwell having only a base infeftment, and there was no public infeftment granted by the superior reserving her right.——The Lords found, That the reservation in the public infeftment, albeit in general terms, yet the Lady's liferent being particularly reserved in the procuratory of resignation, to which the general clause related, was equivalent to a confirmation; and therefore preferred the Lady to the donatar.
