Faculties when effectually Exercised. - Effect on Heirs. - Effect on Singular Successors. - Competition of Creditors claiming under Reserved Faculties.
Isabel Sinclair v. Sinclair of Barrack
Date: 23 December 1724 Case No. No 19.
A person took disposition to lands to himself and his wife in liferent and his son in fee, under the condition of burdening without his son's consent to a certain extent, for provisions to daughters. This found no real burden on the son's estate affecting singular successors.
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Laurence Calder having purchased certain lands from the Earl of Breadalbane, he took the disposition thereof to himself and wife in liferent, and to James Calder his son in fee, with and under this condition and provision, That it should be lawful to the said Laurence at any time in his life, without consent of his son, to burden the said lands with competent provisions to his daughters, or to contract debts for an onerous cause within the half of the value of the lands; which condition and provision was ingrossed in the precept of sasine. In pursuance of this disposition there was a charter granted, and James the son infeft, and the sasine duly registrate; in which charter and precept therein contained, the foresaid faculty to burden was likewise ingrossed. Thereafter the father granted bonds of provision to his daughters, particularly one to his eldest, proceeding on a narrative of the foresaid right and disposition, and of the clause contained in it and in the charter and sasine.
To this bond Isabel Sinclair having right by progress, raised process against James Calder, whose right was burdened with the foresaid provision; and having obtained decreet, she raised adjudication of the said lands; in which process compearance was made for Sinclair of Barrack, who had purchased the lands from James Calder, and produced his disposition and infeftment thereon, long prior to the intenting the process of adjudication; he repeated a declarator, that the lands should be found free of the said provision, and that the adjudication should stop.
It was alleged for Mrs Sinclair, That the power and faculty of burdening the lands was a real burden on the son's right, which could not be neglected by any purchaser, being so anxiously repeated in the disposition and charter, and expressly inserted in the precept of sasine, and sasine itself on record, whereby it became both real and public so as to have interpelled purchasers, who seeing this burden on record, could not bona fide purchase in exclusion of these provisions. 2do, It was alleged, That Barrack's own right was burdened with these provisions, in so far as the narrative of it refers to them; for after deducing several clauses in James Calder's right and infeftment, there follows this one, “With and under the burden of the several provisions contained in the right granted by the Earl of Breadalbane to the said James Calder and his father, prestable by them to him;” and ends with these words, “As the said disposition containing the above clause, and several others more fully bears:” Whereupon it was urged for Mrs Sinclair, That Barrack was subjected to these very obligations by the tenor of the foresaid clause in his own right.
It was answered for Barrack, That the faculty as exercised could never affect the lands: The father might indeed, in virtue of that faculty, have granted real rights upon the lands, which would have been effectual against a singular successor as a real burden upon the subject; but as he only granted a personal bond, which no purchaser was bound to notice, or presumed to know, the right must remain personal till real diligence be done upon it. As to what was alleged from the above clause, that even Barrack's right was burdened with these provisions, it was answered, that the clause related only to the obligations which Barrack's author lay under to the superior; and the meaning could be no other than that the purchaser should be liable to the superior for the whole duties and prestations for which his author stood bound.
The Lords found, that the debts or bonds of Laurence Calder to his children are no real burden upon the lands, to affect a singlar successor; and found the disposition by James Calder to Barrack does not transmit the lands with the burden of these debts, &c.
Decisions cited for Barrack: Thomas Rome against the Creditors of Graham, February 1719, No 17. p. 4113.; The Town of Aberdeen against Davidson of Tillymorgan, 16th December 1708, No 15. p. 4109.
For Mrs Sinclair: Pringle against Pringle, 21st June 1677, No 12. p. 4102. Children of Mouswell against the Creditors, 16th December 1679, No 13. p. 4104. Creditors of Coxton against the Laird of Dipple, see Appendix; Creitors of Carnegie against Carnegie, No 14. p. 4106.
For Barrack Jo. Sinclair.Alt. Ja. Graham, sen.Clerk, Justice.
Fol. Dic. v. 1. p. 293. Edgar, p. 136.
