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.
Town of Aberdeen v. Dr Middleton and Others, Masters of the College of Aberdeen
Date: 19 July 1711
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The Town of Aberdeen having purchased a part of the lands of Panton of Hilton at a roup, which holds of the College, they charge Doctor Middleton and other masters, to receive them, and offer a year's rent. They Suspend on this reason,—That they being a community, which never dies, if they entered them they should lose the casualties of superiority; such as non-entry, liferent es cheat, duplication of the feu-duties which arise by the death, delinquency, or neglect of other private vassals; which is such a prejudice to superiors, that Stair, tit. Infeftments of Property, sec. 41, from Craig, thinks a superior is not bound to receive a community for his vassal; and proposes a remedy,—that the corporation should name a trustee, by whose death or delinquency the casualties of the superiority should open; (and which Basnage, in his learned Commentaries an the Customs of Normandy, calls un homme vivant et mow ant; and Craig, lib. 1, dieg. 2, homo vivens et moriens;) and that his trust be engrossed, both in the charter and seasine, for the corporation's better security.
Answered,—That towns are as capable to purchase and acquire lands as any other of the lieges; and, if so, then law cannot be defective in their entry. And it were a great discouragement to mortifications, if they were subjected to the hazard of non-entries, escheat, and the like; for that might frustrate and disappoint the pious design of mortifiers, and carry away the rents to a superior; which was never intended. It is true, superiors are not bound to receive vassals upon resignation; but, if the party haver of the disposition adjudged the lands, he, by the 18th Act 1669, can force the superior to receive him, on the payment of a year's rent. And, by the feudal law, all the privilege he had was, in his option, to take the land to himself, he paying the debts, which was called the retractus dominicus. And the loss of some casualties is not to be considered; for the feu-duty or other reddendo of the charter is the only essential part. The other casualties are but accidental, and seldom happen. And Stair, ubi supra, acknowledges the case has never been decided in favour of superiors. And it were a great hardship to burghs or other communities to do it; for, put the case, the Society for Propagating Christian Knowledge, lately erected hi Scotland, should, with their stock, buy land, how unreasonable were it to refuse them, because they cannot die? And to expose them to non-entries, liferent escheats, &.c. were to dwindle away so noble and generous a mortification to nothing, and to invert and destroy the pious donation. It is true, if a foreigner or alien, without letters of naturalization, should buy lands in Scotland, he behoved to do it by an interposed trustee; but this is not the royal boroughs' case, who are subjects and natives. If the lands had held of the crown, the Prince, as common father to all his people, would make no scruple in receiving them; and why should the superiors be more uncharitable?
Replied,—That however the Act of Parliament 1669 appoints superiors to receive adjudgers, yet one who buys at a roup of a bankrupt is not an adjudger within the compass of that statute; seeing roups by adjudication came in long after, by the Act 1690, and so could not be in the meaning of the Act 1669. Some said the College was too invidious; for, if they were buying lands themselves, this same objection might be obtruded,—You are immortal; you are an incorporation; we will lose our casualties by admitting you for our vassal; and therefore ye must name a trustee, by whose going to the horn both your table and bursars may come to starve. And though nemini invito jus suum est auferen-dum, yet feudal contracts are much altered from what they were originally, and now more reduced to the way of commerce and trade.
Though some of the Lords inclined to find the letters orderly proceeded against the College till they received the Town for their vassal, yet some concerned in superiorities moved a hearing in presence, the case being new, and of great extent in its consequence; and if the Act in favours of creditors-ad-judgers will extend to buyers who purchase by roup,—that being a kind of adjudication now introduced by law. Therefore it was ordained to be farther heard.
