John Cubbison of Cullenoch v. John Cubbison, his second son
Date: 30 December 1724 Case No. No 25.
A father having been the attorney in taking sasine on a charter to his son in fee, and himself only in liferent, was found barred, when after wards attempting a reduction on account of the want of his, consent.
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John Cubbison the father had taken a disposition from Sir William Gordon of the lands of Blackcraig, to himself, his heirs and assignees; but, when the charter was granted by Sir William the superior, the lands were disponed to the father in liferent, and to John the son in fee; upon this charter sasine was taken, and the father was altorney to the taking of it.
The father raised reduction of this charter, as conveying the fee to his son, contrary to the tenor of the original disposition, and without any written warrant under his hand for so material an alteration of the right, which he contended was necessary, since a right constituted by writ could not be otherways transmitted than by writ, Craig, L. 2. D. 2. § 11. Spottiswood, p. 242.
It was answered for the Son; That the father's consent to the settling of the fee in him, must be presumed from his accepting, using, and keeping the charter especially when he acted as attorney in taking the sasine; and, as a farther evidence that he homologated this disposition of the fee, it appeared, that some years thereafter he signed a bond along with his son, in which the son was designed of Blackcraig, and this designation was not quarrelled by the father.
The Lords found, that the charter and sasine conveyed the fee to the son, and repelled the reason of reduction.
Reporter, Lord Grange.Act. Ja. Boswell.Alt. Ja. Ferguson, sen.Clerk, Dalrymple.
Fol. Dic. v. 4. p. 77. Edgar, p. 140.
