Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Sir William Keith of Ludquhairn v. Sinclair of Dirren
Date: 1 January 1703
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In a competition for the maills and duties of the lands of Scaitland and Ganger-gall, lying in Caithness, betwixt Sir William Keith of Ludquhairn and Sinclair of Dirren. John Keith, being infeft in these lands, dies in 1620, and leaves Hugh and Elizabeth, his son and daughter. Hugh, upon a precept of clare constat from the Earl of Caithness, superior, is infeft in these lands in the said year 1620, and, having no children, conveys and dispones them to Nathaniel Keith, for Ludquhairn's behoof; who, in 1662, obtains a charter from the Earl of Caithness, containing a novodamus, whereupon he is infeft in 1665. Sinclair of Dirren's right was, that Elizabeth, the daughter, served herself heir to John, the father, passing by Hugh her brother, as conceiving him either not infeft, or not validly infeft; and, in 167O, dispones her right to Dirren. In the debate, Ludquhairn craved preference, because he stood publicly infeft in 1665; whereas Dirren's right was five years posterior, in 1670.
Objected for Dirren,—That Luquhairn's right, as derived by progress from Hugh, was a non habente potestatem, and null, in so far as Hugh's seasine wanted the precept of clare constat which was its warrant; and no such precept either was, or could be produced; and though Ludquhairn had raised a proving of the tenor thereof, yet, knowing he would succumb, he had desisted; 2do. The seasine itself was null, not being registrate, though three years posterior to the Act of Parliament for registrations, in 1617; 3tio. No progress from Nathaniel Keith to Ludquhairn produced.
It was answered to the first,—By the 24th Act of Parliament 1594, where one produces a seasine and instructs forty years' possession, there is no need of producing either procuratories or instruments of resignation, or precepts of clare constat, and other warrants of their seasines; so that Act dispenses with his want of the precept of clare constat: Likeas, by a warrant produced under the Earl of Caithness's hand, it appears that same precept of clare was given up to Dirren; so he is in pessimo dolo to obtrude the want of it: and, by letters under Dundas's and Davidson's hands, it appears it was then extant; which are sufficient documents, without proving the tenor: and Ludquhairn being validly infeft in 1665, prior to Dirren, it is sufficient to exclude him, without going any farther back.
To the second, of the seasines not being registrate, it was answered,—That the Act of Parliament 1617 had not taken its full effect in 1620, in the remote shire of Caithness, neither is a place for that shire mentioned in the Act of Parliament: Likeas, an unregistrate seasine is good against Elizabeth and Dirren, her assignee, she being heir; as was found, 23D November 1671, Rorison against Sinclair.
To the third, Nathaniel Keith was sufficiently denuded by an adjudication led against him.
Replied for Dirren,—That the Act of Parliament 1594 only dispenses with the production of precepts of clare constat, where there has been a clear uninterrupted possession by the space of forty years; which cannot be instructed here in Hugh Keith's person. Neither is this supplied by the Earl of Caithness's charter to Ludquhairn in 1662; for either that was given as an original right, or as a step and connexion in Hugh Keith's progress: An original right it cannot be, in regard it bears expressly to be granted by the Earl as superior only; neither does it appear that the property was any wise returned or consolidated with the superiority. As an intervening connecting step in the conveyances it is as little; because Hugh's and Nathaniel's, to which it is relative, are not produced; et sic non creditur referenti nisi constet de relato.
Duplied for Ludquhairn,—That a talis qualis possessio satisfies the Act of Parliament 1594; and it is evidently proven, that either Hugh Keith himself, or one Denoon, an appriser from him, possessed all that time; and Elizabeth's right designs the lands as possessed by these two. And as to Dirren's quarrelling Ludquhairn's infeftment in 166.5, it is jus tertii to him, his own right being defective: seeing it bears Elizabeth, his author, was interdicted to Sinclair of Brim, and others; whereas, only Brim consents, albeit the word others, being-plural, imports there has been at least three interdictors; and, so the plurality not subscribing with her, the right is null, and that this is jus tertii. See 19th November 1624, Laird of Lag against Tenants; l6th June 1665; and 23d December 1668.
The Lords having considered this case, on the Lord Tillicoultry's report, they thought both the progresses lame and defective; and Dirren founding on a possessory judgment, the Lords repelled it in hoc statu processus, it not being proponed in the Act. And, before answer to the nullity of the seasine for want of registration, they ordained trial to be made in the particular register of Inverness, if, about the year 1620, the seasines of the lands in Caithness used to be regis-trate there; and, likewise, the general register at Edinburgh serving for the whole kingdom, if at that time any Caithness seasines can be found inserted there. And, as to the forty years' possession required by the Act of Parliament 1594, resolved to hear them farther, if it must be a peaceable plenary possession, or if a talis qualis be sufficient; or if it was competent to Dirren, the defender, unless he were in possession himself.
