No real right is established by an infeftment a me, until it be confirmed.
James Douglass of Hisleside v. William Somervel of Kennocks
Date: 10 July 1713 Case No. No 5.
A party served heir in general to the receiver of a disposition (who died infeft a me without the superior's confirmation), renounced and disharged the disposition. The Lords found, the whole right in the defunct's person was conveyed by the general service to the heir, and the heir's discharge and renunciation were found to be a mid impediment, and effectual stop to any subsequent confirmation of the infeftment a me, to hinder it to operate retro, to validate the infeftment of another upon a special service, as heir to the obtainer of the disposition.
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Mr William Somervel having disponed the lands of Kennocks and Blantaggart to James Stuart son to Mr William Stuart of Hisleside, who was infeft in the year 1670; Grissel Stuart spouse to Samuel Douglass of Hisleside, in the year 1683, after having been served heir in general to James Stuart her brother, did with her husband subscribe a discharge and renunciation in favours of William Somervel, of all right in their persons by virtue of any disposition or other right or title they could pretend to the lands of Kennocks. After the decease of Grissel Stuart, James Douglass now of Hisleside her son, served heir in special to James Stuart his uncle, as the person last vest and seased in these lands of Kennocks, and commenced a proving the tenor of the said disposition and infeftment, which were abstracted and amissing.
William Somervel objected, That the pursuer had no right to prove the tenor, because, 1. His special service is intrinsically null, as proceeding upon an infeftment a me not confirmed by the superior at the time of the service, which infeftment was null, or at most but a preparatory step in order to establish a right whenever a confirmation should be obtained; so that there was no subject for a service, that is no feu, which could not be constituted by a null, or at most a conditional infeftment: And though the ordinary way of annulling services be by a great inquest, yet the Lords sustain reductions of services before themselves where the nullities are obvious. Nor can a confirmation lately impetrated by the pursuer, validate the service expede before there was a right in being, to which James Douglas could be served, suppose it might make way for a subsequent service. 2. Ita est, that before confirmation, the disposition in favours of James Stuart (which notwithstanding the infeftment a me not confirmed continued a personal right), was transmitted to Grissel Stuart his sister by her general service, and by her effectually discharged and renounced, as if no sasine had followed: Which general service and renunciation was such a mid-impediment as hindered the confirmation to operate retro, so as to validate the pursuer's infeftment from the date thereof. For Grissel being generally served, might have resigned upon the procuratory in the disposition, and completed her right, or might have conveyed her right to others, who might in the same way have rendered theirs effectual. And as the imaginary infeftment was no hinderance to the transmission in favours of Grissel; so after the right came in her person, she did so extinguish it, as there was no more place for confirmation. For clearing which point, it would be noticed, That the defender doth not plead, that the general service conveyed the disposition with the sasine a me taken upon it, which truly could not fall under any service, as being really no right, but merely a consent to establish a right, in case another party concurred, that did not exist till that concourse was given; nor yet does he pretend, that the general service alone did make the infeftment a me to cease, or hinder it to become a valid right by confirmation; but what the defender urgeth is, That the whole right James Stuart had being conveyed to his sister, the same was legally and fairly extinguished by her renunciation, and so hindered the effect of any subsequent confirmation; or as our lawyers say, was a medium impedimentum to hinder the drawing back of the confirmation to the date of the sasine. It is not necessary in all cases, that a mid-impediment for hindering the conjoining a confirmation with a precedent sasine, be a real right established by infeftment, Dirleton's Doubts, tit. Confirmation, Craig, Feud. lib. 2. Dieg. 4. § 19, Paton contra Stuart, voce Superior and Vassal; which seems to be required only when more voluntary rights are granted by the same person, and the last right first completed would be preferred. But after all, it seems needless to dispute this point; since the question is not about a conveyance of the disposition made by Grissel Stuart which the receiver neglected to complete before this confirmation intervened; but about a total extinction of the right itself, which takes away all place for confirmation, as an accident cannot be without a subject.
Answered for the pursuer, 1. He being served heir in special by an inquest of 15 sworn men, is not obliged to defend the evidences upon which the service proceeded: The formal retour produced by him sufficiently entitles him to action, and cannot be thus taken away by exception. Again, it is jus tertii to any not pretending to be a nearer heir to the defunct, to quarrel the service; besides, there is no reason why an apparent heir may not pursue a proving the tenor of these very rights in which he is to be served. Nor was it necessary for the pursuer to have got a confirmation before his service; if what is daily practice, and the Lord Direlton's opinion, page 25, be to be regarded. When our lawyers say, That an infeftment a me is null till confirmed, they do not understand it to be simply null, as a sasine is for want of its proper symbol; but null as to certain effects, viz. in a competition with a more complete right, or null by not taking present effect, and being as it were in suspence till confirmed by the superior, like donatio intcr virum et uxorem, quæ morte confirmatur. So that albeit the sasine a me, was null or uncomplete quoad the superior, or a third party, vested first with a more solemn right, yet it is good against an heir who may be debarred personali objectione from quarrelling. 2. James Stuart's infeftment could be carried only by a special service, because had it not been more than a personal right, confirmation could not make it a complete real right. Its being rendered completely real by confirmation, implies that before such completing it was of the same nature as after, that is real; seeing confirmation (which is but an approving or ratihabition) might strengthen the right, but could not alter the very essence of it. 3. The infeftment a me is not carried by a general service (which conveys personal rights) because it hath several effects of a real right, the best proof that it is one; viz. it infers recognition, Lady Carnegy contra Lord Cranburn, voce Superior, and Vassal, Stair Instit. tit. Extinction of Infeftments, § 11.; which an unregistered sasine doth not, as Craig observes; and yet an unregistered sasine is acknowledged to be a real right. The casualties of superiority fall retro from the date of the sasine a me, whenever confirmation is obtained, Stair, Instit. tit. Infeftments of Property; but no such casualities fall by a personal right, though confirmed by the superior. And infeftment a me would be a sufficient title in a mails and duties against tenants. 4. Esto, a sasine a me did not make a valid right till confirmation, yet the disposition on which it proceeds, is owned to be a valid personal right: Now the same arguments that are made use of to annul the infeftment, would also annul the disposition, which is the warrant of it, and properly that which the superior confirms. 5. Grissel Stuart's general service could be no mid-impediment; because even after that service she herself could have confirmed the sasine, and completed her right that way; and consequently, so could the pursuer, when his mother did no more but serve heir in general. Had Grissel Stuart, after the general service, resigned upon the procuratory in the disposition granted to her brother, and taken a charter of resignation and infeftment, that would indeed have hindered the pursuer's confirmation, to draw back, because two could not be vassals in the same right to the same superior: But she never having become vassal, it was entire to the pursuer to make use of the faculty he had of making himself vassal, by serving heir in special and confirming. Her renunciation could have no effect, because her general service could at most carry only the procuratory of resignation, which could not be effectually renounced; seeing the dispositive part and precept of sasine were not carried by the general service. Again, when our lawyers say, that an apprising is a sufficient mid-impediment to hinder a confirmation to draw back, they are to be understood of a complete apprising. Because they mention apprisings against the disponer, and not apprisings against the obtainer of the disposition.
The Lords found, That the whole right in James Stuart's person, by the disposition made in his favours, having been conveyed to his sister by the general service; her discharge and renunciation was a mid-impediment and effectual stop to any subsequent confirmation of the infeftment a me, which was once in James's person.
