Although Lords of Erection after 1633 were no more superiors, and had only right to the feu-duties by reservation till redeemed, yet a disposition alone did not sufficiently convey, and therefore an infeftment, though posterior, was preferred.
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In the competition between the Earl of Aberdeen and Forbes of Auchorties, the case was, the feu-duties of these lands belonged anciently to the Abbacy of Arbroath. That being erected in favours of the Marquis of Hamilton, he conveyed them to Urquhart of Meldrum, who, by a simple disposition, first transmits them to Forbes of Auchorties, and afterwards by resignation to the Earl of Aberdeen, who thereon takes infeftment, and contends on his right. Auchorties alleged, That the Lords of Erection, since the surrender to the King, and the act 10th Parliament 1633, are no more superiors of the kirk-lands, but have only right to the feu-duties by reservation, ay and while they be redeemed from them, and so need not infeftment to their conveyance, but are sufficiently transmitted by simple disposition and assignation; else the vassals of these kirk-lands should have two co-ordinate superiors, contrary to analogy of the feudal law. Answered for the Earl, That the practice of all the Lords of Erection, since the surrender, has sufficiently explained this doubt, for they have all conveyed by resignation and infeftment; neither is this the setting up of two superiors, for their infeftment is only for security of these feu duties till redemption; and if a naked assignation were sufficient to convey these duties in the reddendo of the Abbot's charters, it would brangle many of the transmissions and settlements by infeftment, which others thought necessary to expede. The Lords, by a narrow plurality, found the disposition alone did not convey sufficiently, and therefore preferred the Earl of Aberdeen's infeftment, though posterior.
Fol. Dic. v. 1. p. 530. Fountainhall, v. 2. p. 42.
