Confirmation of the Radical Right, whether it Validates all the Branches.
Lady Riccarton v. Sir James Baird, &c
Date: 22 July 1708 Case No. No 13.
In a contract of marriage, an estate being disponed to the husband and wife in conjunct fee and liferent, upon which the husband and wife were infeft holding a me; a confirmation granted to the husband, was found to accresce to the wife, so as to validate her infeftment in a competition with real creditors.
Click here to view a pdf copy of this documet : PDF Copy
The competition betwixt Margaret Dalgleish, the old Lady Riccarton, and Sir James Baird of Saughtonhall, and other real creditors of Craig of Riccarton being reported, it was objected, That the Lady's liferent infeftment was null, because her sasine was taken upon a charter a me, and never confirmed till 1703, long after the creditors are infeft, which, as middle impediments, hinder her confirmation to be drawn back ad suam causam.—Answered, Her sasine relates only to a charter in general, which might as well be de me as a me; and the contract mentioning to infeft her both ways, it must be presumed to be upon both, quæ fieri debent facile præsumunter; and the contract of marriage, though the remote warrant of the sasine, must be sufficient to support it; for probatis extremis præsumuntur media, especially in re tam antiqua et favorabili, as is the materia dotis; and the husband's right being confirmed, though in general, without mentioning her's, it must accresce to her, especially being fortified by 40 years possession. And President Gilmour observes, that the Lords sustained a wife's liferent infeftment on a charter a me, 15th Jan. 1663, Campbell, No 35. p. 1302.; and Home, No 5. p. 1690.; and 22d June, and 28th July 1637, Blairquhan contra Viscount of Kenmure, voce Union.—Replied, The Lady's sasine can be ascribed to no other warrant but the charter a me produced, though it do not expressly mention it; and the husband's confirmation can never support it, it having no relation to her infeftment; yet see Norvel contra Hunter, voce Proof.——The Lords sustained the Lady's infeftment, being clad with 40 years possession, notwithstanding no other immediate warrant appeared, but the charter a me, seeing the husband's confirmation accresced to her; and therefore preferred her to the real creditors, though they were infeft before her confirmation in 1703.
Fol. Dic. v. 1. p. 193. Fountainhall, v. 2. p. 457.*** Forbes reports this case differently, thus:
In a competition of the Creditors of Riccartoun, the Lady claimed preference for her liferent annuity of 2,500 merks upon her contract of marriage in December 1661, with Lewis Craig, then younger of Riccartoun, containing a procuratory of resignation and precept of sasine, wherein Thomas Craig his father provided him to the fee of the estate, and her (who brought 32,000 merks of tocher) to the said annuity, and obliged himself to infeft them in the fee and liferent respective, by two manner of holdings a me and de me; a charter a me granted to them by the said Thomas Craig in January 1662; a sasine of the same date, long prior to the creditors rights; and a charter of confirmation in anno 1703, which, though posterior, ought to be drawn back ad suam causam.
Alleged for the Creditors, The Lady's infeftment proceeding upon a charter a me is null, for not being confirmed before the Creditors right intervened, which mid-impediment hinders the drawing back ad suam causam.
Answered for the Lady; Her father-in-law being obliged to infeft her both a me and de me, and the sasine relating to a charter in general, he is presumed to have done it omni meliore modo, and consequently to have granted charters both ways, conform to his obligement; it being usual at that time so to do, and to give sasine upon both, et quæ fieri debent et solent, facile præsumuntur; especially considering, that the contract of marriage is of the nature of a charter, containing a precept or sufficient warrant of a sasine, though no charter were produced; and in favorem matrimonii, many things singular have been sustained. Nor is there any necessity now, after forty years, to produce the charter de me, which has been granted ex superabundanti for form's sake only, the contract, which is the remoter warrant, and the sasine, being produced; seeing probatis extremis, præsumuntur media; especially in re tam antiqua, et materia favorabili. So a contract of marriage was sustained to adminiculate a sasine in favours of a wife, whereof a separate bond, granted in implement of the contract, was the warrant, and not produced; Norvel against Hunter, voce Proof. 2do, Et separatim, though commonly a charter a me, is null till confirmation; yet, infeftments upon liferent rights to wives, by virtue of their contracts of marriage, to be holden of the superiors, not confirmed, have been sustained against singular successors; January 15, 1663, Campbell against the Lady Kilchattan, No 35. p. 1302.; and preferred to intervening rights completed before confirmation; 4th February 1629, Home, No 5. p. 1690. Nay, even before the act of Parliament 1695, a base infeftment in favours of a wife, not clothed with possession, was preferred to posterior public infeftments; February 21, 1672, Reid against the Countess of Dundee, No 38. p. 1305.
Replied for the Creditors, If the charter a me be not the warrant of the sasine, but a charter de me not produced, the sasine is null, as wanting a warrant; for the contract of marriage, which is not mentioned or referred to therein, cannot support it. And if the charter a me be understood to be the warrant of the sasine, the confirmation thereof could not be drawn back to the date of the charter and sasine, in prejudice of the creditors' intervening rights; according to the maxim, Confirmatio et confirmatum, non possunt conjungi, propter medium impedimentum. Nor doth it alter the case, that the disponer in the contract of marriage, was bound to give infeftment either to be holden of himself, or of the superior; Paton against Stewart, voce Superior and Vassal. And albeit in favourable cases, law will presume a thing that ought to be, to have intervened; presumptions cannot be received against plain evidences, nor two or more fictions concur in one point; as, that the charter a me produced, was not the warrant of the sasine; that there was a charter de me granted; and that it was the warrant of the sasine.
The Lords preferred the Lady's annuity to the real rights of the competing creditors completed before her confirmation, in respect her sasine was supported by her contract of marriage, providing her to that annuity, and bearing precept of sasine in the lands affected therewith, and by forty years possession, albeit a charter de me be not produced. For the Lords considered that the sasine referred only to a charter in general, and that it was then the custom to grant charters a me and de me, and to take infeftment upon both at the same time; and that it is a presumption and not a fiction of law, that a charter de me intervened.
