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The Lords found, that an infeftment of burgage lands from the King was not from the right superior, though the Magistrates of Royal Burghs are reputed only the King's Bailies, and burgage holds of the King; and, therefore, preferred a posterior infeftment from the Bailies and Town-clerk. 2do, They found that a few acres, bought by my Lord Kincardine from several heritors, being imparked, and so naturally united, and contiguous with some other parcels of his own land, a disposition, given by a subject, for taking sasine at the manor-place for all these acres and park, was sufficient, without a formal erection and union from the King. —See Union.
Fol. Dic. v. 1. p. 470. Harcarse, (Infeftment.) No 604. p. 168.*** Sir P. Home reports this case:
1687. June. —In the competition among the Creditors of Kincardine, it being alleged for the Lady Kincardine, That they ought to be preferred to the Earl of Marr, as to the lodging, yards, and parks of Culross, because the lodging, yard, and whole parks, are a part of the Abbey of Culross, and are within the erection of the burgh, as appears by the charters of erection, except 17 acres, which are particularly excepted in the erection; and which lands hold burgage of the town, and the Lady is infeft, holding burgage; whereas, the Earl of Marr is infeft under the Great Seal, holding of the King; so that he being infeft by the wrong superiors, the Lady ought to be preferred: As also, the Earl of Kincardine acquired the house, yard, and several acres of land within the park, at different times, and from different authors, and was infeft by several sasines, and the Lady is infeft in the same manner; whereas, the Earl of Marr has only but one sasine for all, which can be extended no farther than the particular parcel of lands, in which infeftment was taken, especially seeing there is no union or erection into a barony. Answered for the Earl of Marr, That he was infeft by the same superior, and after the same manner that the Earl of Kincardine was infeft, who, being the common author, the Lady could not quarrel his right; and the Earl of Kincardine's charter bears an express warrant, that one infeftment should be sufficient for all the different acres; and, upon these grounds, the Earl of Marr did obtain decreet of removing against the Lady in foro, which the Lady has homologated, by accepting of a tack from him of the lodgings, yards, and parks for a year. Replied, That the Earl of Kincardine was infeft, holding of the King, by a mistake, seeing now it appears that the lands hold burgage, and the Lady has adjudged the disposition made to the Earl, her husband, from the Earl, her son, upon which she is infeft by the town of Culross, and so has completed her right, by infeftment from the right superior; and, when the Earl of Marr obtained a decreet of removing, the Lady did not know that the lands were burgage lands, and the writings, by which she instructs the same, are but newly come to her knowledge, being found in the charter chest which was consigned in Sir Alexander Gibson, the Clerk's hands; and, upon that ground, she did raise a reduction of the acts and decreets, which she repeated, and the tack was only for a year; and so, being now expired, it cannot prejudge the Lady. The Lords found, that, during the years of the tack, the Lady could not quarrel the Earl of Marr's right, upon any right that she had since acquired; and found, that the sasine taken was only sufficient for acres lying contiguous, and holding of the same superior.
