Whether Possession be requisite to give effect to Base Infeftment.
Marquis of Clydesdale v. Earl of Dundonald
Date: 26 January 1726 Case No. No 3.
Base infeftment is good against the granter and his heirs, tho' neither registered nor clothed with possession.
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*** This great cause consists of various branches. That part of it which regards Base Infeftments is distinguished by the marginal note opposite. The other subjects will be referred to in the particular Titles to which they belong. It has been thought best to record the whole case together, where it first occurs.
BRANCH I.
Clause of Return.
The estate and honours of the family of Dundonald being provided to heirs-male in the year 1716, John Earl of Dundonald having only one son, William, the last Earl, from whom he had no great expectation of issue, executed a deed, by which, “failing heirs-male of his own body, he obliges himself to provide and secure his estate in favour of Lady Anne Cochran his eldest daughter, and the heirs-male of her body; whom failing, to his other daughters, in their order,” &c. Earl William having died in his minority, without issue, the Marquis of Clydesdale, only son to Lady Anne Cochran, brought an action to have it declared, “That the heirs-male of the said Earl John's body having failed, he the Marquis, as heir-male of the said Lady Anne's body, was heir of provision to the said Earl his grand-father; and craving that the present Earl of Dundonald might be decerned to make up his titles to the estate, and convey the same in his favour.” On the other hand, this Earl of Dundonald, the heir-male of the family, brought a counter action of declarator by way of defence; among other conclusions, insisting that it might be found, “That William, first Earl of Dundonald having conveyed his estate to heirs-male, with a clause of Return to himself failing heirs-male, this imported a prohibition to alter; and therefore the said Earl John had no power, by a gratuitous deed, to alter the conveyances and course of succession which their ancestor had established for the preservation of his name and family.” These conveyances stood thus: The said William first Earl of Dundonald, by diverse deeds, in the years 1653, 1656, and 1657, settles his estate upon “William Lord Cochran his eldest son, and the heirs-male of his body; whom failing, to return to himself.” And in the year 1680, by a procuratory of resignation; and 1684, in his grand-son's contract of marriage, the same Earl William, after the decease of this son, renews the settlement “in favour of John Lord Cochran his eldest grand-son, and the heirs-male of his body; whom failing, to William Cochran of Kilmaronock, his second grand-son, (father of Thomas the present Earl) and the heirs-male of his body; whom failing, to his other grand-sons; whom failing, to himself; whom all failing, to the eldest heir-female of his own body, without division.”
From these deeds it was pleaded for the Earl, That where a maker of an entail divests himself of the fee, and substitutes himself to his own donees; such substitution being purchased at no less value than the whole subject, is in the strictest manner onerous, and consequently unalterable by any of the intermediate substitutes in prejudice of the maker. If one should give a sum of money to the maker of a tailzie, to get himself put into the substitution, such substitution would be onerous and unalterable in prejudice of him who gave the consideration for it: And is not the intention as strong, when a man gives away his estate, with a provision of return to himself in a certain event, that the same should not be arbitrarily disappointed, as where he had only contributed a small matter for being named a substitute? To confirm this, see 31st January 1679, Drummond contra Drummond;* 10th December 1685, Mortimer contra College of Edinburgh:† In which cases, though the substitution was in money, and not in lands, it was found, that the institute could not alter in prejudice of a clause of return; and the ratio decidendi was purely the onerosity of the substitution, which equally applies to all estates, whether in land or money. And in a late case betwixt the Duke of Douglas and Lockhart of Lee, in a land-conveyance, a return to the tailzier was found to be an onerous substitution, not to be gratuitously altered, voce Fiar Absolute, Limited.
It was allowed by the Marquis, That the Lords in some cases have made a distinction betwixt a clause of return and a simple substitution; that a clause of return was something stronger, and yet not the same with a prohibitory clause: But it was contended, That the Lords never found this in any case where an estate was provided to an heir alioqui successurus; which failing, to other heirs; which failing, to return to the granter, &c. Indeed, where an estate is given away to a stranger, or one not alioqui successurus, with a limitation to particular heirs, and a provision of return to the granter; this has been explained to have the force of a paction betwixt the granter and the stranger receiver of the estate, that failing the heirs in the limitation, the estate should return to the granter. And this is most just, because where a proprietor makes such a deed, it is evident he is not settling his succession, but is giving away his estate from his successors for a particular use; and this reasonable condition is implied, that causa cessante, cessabunt effectus, when that use is at an end, that himself or his righteous heir shall have back the estate. And this cannot be better illustrated, than from consideration of the late case betwixt the Duke of Douglas and Lockhart of Lee, cited for the other party: There a part of the family estate of Douglas, being given away to the heir of a second marriage, and the heirs of his body; which failing, to return to the right heir of the family of Douglas; the Lords did justly interpret, “That that clause of return was not a simple substitution, but was of the nature of a paction betwixt the family and the heir of the second marriage, that failing
* Stair, v. 2. p. 686. voce Fiar Absolute, Limited.
† President Falconer, No 97. p. 67. voce Fiar. Absolute, Limited.
him and his heirs, (in support of whom alone the estate was given) the estate should come back to the family:” There is therefore a wide difference betwixt this case and every case where a man is settling his estate upon his own heir. In all such cases, the last substitution being by way of a clause of return, there is no conveyance for a certain use, no implied condition; it is no more than a common expression, pointing out whom the proprietor intends should be his heir, failing such another; still leaving every substitute in his full right of property and power of disposal. It is to no purpose, therefore, to insist upon the onerosity of such a clause of return: There is no question the maker of a tailzie, disponing his estate to his heir alioqui successurus, since he might retain it to himself, can make it return upon what conditions he pleases; but where his principal design is consessedly that only of pointing out the succession of his heirs, can any secondary intention be drawn from a clause of return importing a limited tailzie? The Marquis's lawyers beg leave to say, the presumption lies on the other side, since the Earl of Dundonald made no use of the known irritant and resolutive clauses calculated for the restriction of property, that he designed only a simple destination, and had no view to limit his successors. Taking the matter in this view, the decisions cited for the Earl will be found nothing to the purpose, they being in relation to sums of money given as provisions to children, and consequently grants for a particular use; which use being at an end, the intention was obvious, that the sums should cease to be due: So that bonds of this nature are understood to be so far personal, that they go not to gratuitous assignees.
It was urged in the second place for the Marquis upon this head, That whatever effect a clause of return may have with regard to the persons in whose favour conceived, it can operate nothing in favour of the intermediate heirs who are called to the succession before these persons. Now let it be granted, there was the strongest security in favour of the Earl of Dundonald's heirs whatsoever, what is that to the heirs-male? Is there any thing thereby stipulated in their favour? Or is it a tenable point, because the Earl took care to tie down his son, and the heirs-male of his body, not to dispose of the estate to a stranger in prejudice of his heirs of line, that therefore his son, or any of the subsequent heirs-male, could not better the case of the heir of line, and give him the succession sooner than the Earl had stipulated? This is the very case: The Marquis of Clydesdale is the heir whatsoever, the very person in whose favour the return is conceived; how then can it be said, that the deed in his favour is in prejudice of the clause of return? And if not in prejudice, how comes the clause to be made a foundation upon which to reduce it?
To this it was replied for the Earl, “It is a principle, Wherever a substitution is onerous in favour of the last termination, it gives the force of a fideicomiss. to the whole destination.” If which were otherwise, this absurdity would follow, that the substitute who was made preferable in the succession, would have a weaker right than he who was called after him: Besides, that the matter could not otherwise be expedited; for when the gratuitous alienation is made, it is probable the onerous substitute may have no title to quarrel it, many being before him in the right of succession; and when perhaps after a long tract of time, the succession is open to him by the failure of the intermediate substitutes, they themselves being all the while out of possession, he has but a slender lay that this shall turn to his account, when in all probability the provision of return is quite forgot, or cut off by prescription in favour of third parties.
‘The Lords found, That neither the clause of return in the contract 1653 and 1656, nor the substitution in the procuratory of resignation 1680, or contract of marriage 1684 years, did disable the last John Earl of Dundonald, gratuitously to alter the succession by a deed in favour of his daughters, in prejudice of the heir male of the former investiture.’ See Fiar Absolute, Limited.
BRANCH II.
Minor.
Another head of the Earl's declarator was to this purpose, that at any rate the deed in the 1716 falls to be set aside, in respect that the last Earl William, in the 1725, with consent of curators; made a new deed of settlement in favour of the present Earl. Against which deeds, in the 1725, it was objected, That they were done on death-bed, and in minority; either of which was sufficient to set them aside.
It waspleaded for the Marquis, It is a received maxim in our law, that a minor, even with consent of curators, cannot prejudge his heir, or gratuitously alter the settlements made by his predecessor. Sir George Mackenzie, in this matter, is express in his treatise of Tailzies, where he says, “It hath been doubted if minors can make tailzies, even with consent of tutors and curators: And I conceive they cannot; for though it cannot be properly said that they themselves are lesed; seeing they continue still fiars; yet a minor may be justly said to be lesed, in that he wrongs his family and nearest relations.”
In support of the deed, it was pleaded for the Earl of Dundonald: It is the known law of Scotland, that a minor with consent of curators, or by himself where he has none, has the same power over his estate, as if he was of full age; under this single exception, ‘unless the minor himself is lesed by the deed.’ The original of the maxim, that a minor cannot prejudge his heir, comes from this, that generally speaking these two go together, a lesion to the minor himself, and a lesion to his heir and family. Now in the present case it happens to be quite otherwise; Earl John, the minor's father, intended to disinherit the present Earl of Dundonald, while at the same time he was his representative both in name and honours; which was the most irrational action of that gentleman's life: A deed, which had he been minor when he did it, he could have reduced on the head of lesion, granting it otherwise unalterable. Is it not then unreasonable to maintain, that his son, the heir of the family, was lesed by the alteration?
Replied for the Marquis: The pretended favour of conjoining the estate and honours alters not the case: The settlement made by the predecessor is presumed in law to be the most advantageous for the minor; and it admits no arguments against this presumption. Besides, there is another reason drawn from utility: For be it once introduced, that a minor, to whom the law ascribes a weakness of mind, may alter the deeds of his predecessors without a sufficient onerous cause, it will lay him open to such importunities, as may prove highly pernicious to his family; and therefore such importunities it is the common interest to guard against.
‘The Lords found, That William last Earl of Dundonald could not, in his minority, though with consent of curators, gratuitously make any alteration of the destination of succession contained in the said bond of tailzie 1716.’ See Minor.
BRANCH III.
Death-bed.
In answer to the other objection of death-bed, against the deeds made by Earl William in the 1725, and in support of these deeds, it was urged for the Earl, It is a principle indeed, That death-bed deeds are not good against the heir. But this will not apply to the present case; in respect that neither the Marquis, nor the Duchess of Hamilton, his mother, were in any sense heirs to Earl William, whose deeds are craved to be reduced, 1mo. In that they could not have been served as heirs of provision to him; 2dly, Esto they could, yet an heir of provision, who cannot serve in the subject, is not such an heir as in law is entitled to the privilege of death-bed. To make out thefirst point, Earl John is not obliged, by the bond of entail 1716, to resign in favour of himself, whom failing, in favour of Lady Anne; but he directly obliges himself to resign to Lady Anne. By this clause she was stated a proper creditor, and by no means heir: There was nothing in the person of the granter, which she could carry by a service, in the event the obligation was to take effect; and it is evident, where there is no service, there can be no heir. But then, as to the second point, Esto Lady Duchess could have served heir of provision; yet by the original constitution of the law of death-bed, and by the records as far back as they are to be found, an heir of provision has not this privilege, but singly the heir of the investiture, or, in other words, the heir in the subject alienated. This is distinctly held forth by our learned countryman Craig; who, after he has told us, on the subject of death-bed, that in lecto ægritudinis nemo potest hæredi suo præjudicare, when he comes to explain who it is that can succeed as heir, L. 2. Dieg. 13. § 5. his words are, “Apud nos, hæres is solus est, qui in feudum rerum immobilium, aut rei alicujus immobilis succedit;” and afterwards, § 25. “Is proprie hæres non dicitur, nisi qui a lege ad successionem vocatur; sunt enim qui non ex lege, sed ex conventione partium succedunt; sed hi nomen hæredis non merentur.” And surely, as there is no reason for extending this law in the general, there is much less in this particular case: The deed complained of, is a deed altering a former; which former was, in the eye of the law, a lesion prejudicial to the granter and his family: And as the law of death-bed was introduced for preventing impositions and abuses to the ruin of families, would it not be a most irrational decision, that the deed of a successor, rectifying a ruinous conveyance made by his predecessor, should be reduced upon the same ground of law, on which the deed itself whereby the ruin came could have been reduced?
Replied for the Marquis, That there is no distinction in the law of death-bed, betwixt a right of a person that is heir, in virtue of a personal deed, and him that is heir by an investiture completed with infeftment. Craig indeed points at a distinction; but his opinion on that head has been exploded, and justly. The foundation of the law of death-bed was, to prevent persons being imposed upon, by the importunities not only of priests, but of near relations, at a time when, through weakness, they are presumed not capable of resisting solicitation, to alter the succession in prejudice of those persons, who, during their firm health, were the true heirs, to whom the estate was by law to descend, by whatever title, as heirs, whether of line, male, conquest, or provision; and without distinction, whether they were heirs in virtue of a personal deed, or a deed on Which infeftment followed. And, as this is established by constant practice, it is unnecessary to take notice of any other decision, than what passed in the case Hepburn of Humby contra Hepburn, 25th February 1663*; where there are three points determined, every one of which destroys the objection made in this case. The first is, “That the pursuer of the reduction had a good title, though he had only a personal provision in his favour, conceived in a contract of marriage upon which no infeftment had followed:” And the reasoning there was precisely the same that is now made use of for the Earl of Dundonald. 2do, It was determined, “That the law of death-bed did operate in favour of an heir-male, by virtue of a personal provision, even in prejudice of the heir of line, who was heir of the investiture:” How much more in favour of the heir of line in. prejudice of a collateral heir-male? And 3tio, It was determined, “That though the right of the heir-male arose only from the deed of the defunct, who had made a disposition in his favour to the exclusion of heirs of line, and had reserved a power to alter; yet that alteration could not be made on death-bed, to the prejudice of that very person whom the defunct, by his own deed, had created heir.” And if it be said that this case was settled betwixt the parties, let it be considered what Lord Stair takes notice of, That the Lords were mostly of opinion that these points were law in every case.
‘The Lords found, That William last Earl of Dundonald could not, on death-bed, gratuitously make any alteration of the destination of succession, contained in the bond, of tailzie 1716.’ See Death-Bed.
BRANCH IV.
Prescription, Base Infeftment, Hæreditas jacens.
Another head of the Earl of Dundonald's declarator was to this purpose, “That in so far as concerned certain parcels of the estate, the gratuitous deeds of alteration” (under which the Marquis claims) “must be declared
* Stair, v. 1. p. 186. voce Death-Bed.
ineffectual, as granted by persons who, with respect to these parcels, were only in the state of apparent heirs.” The matter stood thus: William, first Earl of Dundonald, in his son the Lord Cochran's marriage-settlement, disponed to him and the heirs-male of the marriage, the lands of Dundonald, Ochiltree, Cochran, &c. in virtue whereof, the Lord Cochran was infeft in these lands. Again, in the year 1656, there was a contract of excambion betwixt, the Earl and his son, by which his son redisponed to him the lands of Ochiltree; in lieu whereof the Earl disponed to his son, and the heirs-male of his body, &c. the lordship of Paisley and lands of Glen, in virtue whereof the son was thereafter infeft. After this there were certain other lands purchased by the said Earl William, to himself in liferent only, and to the said; Lord Cochran, and the heirs-male of his body in fee: And though all these several lands were thus habily vested by, infeftment in the person of the laid Lord Cochran, and the heirs-male of his body; none of the later Earls, descendants of the Lord Cochran's body, made up any title to these infeftments: To, which, therefore, it was, pleaded, That the present Earl of Dundonald, as the nearest heir-male of his body, has the only right.
Objected to this, in the first place, for the, Marquis, That in as much as William the first Earl of Dundonald, had, in the year 1680, resigned the said lands wherein his son died infeft, in the hands of the superior, for new infeftment thereof to John Lord Cochran, his grandson, in virtue whereof he was infeft and on the footing of which infeftment the family have possessed downwards to the death of Earl William in the 1725; therefore, any claim the present Earl could have, as apparent heir of the infeftments, which stood in the person of William Lord Cochran, his grandfather, was lost both by the negative and positive prescription.
Answered for the Earl, 1mo, Were there otherwise termini habiles of prescription, of which afterwards, it could only commence from the death of the Earl, whose liferent was reserved in the several conveyances, because the Lord Cochran could not sooner begin to possess, without which, there can be no positive prescription: Now, he having deceased no sooner than November or December 1685, the forty years had not expired when the present Earl brought his action of declarator, 2do, As to the negative prescription, though there had been possession from the 1680, still the years of William the first, the liferenter, behoved to be deducted; because, while he lived, the present Earl, heir of the Lord Cochran's infeftments, was non valens agere: And the Lords have found in a course of uniform decisions, that prescription cannot run against the fiar during the life of the liferenter. In the next place, there can be no negative prescription in this case, because, as well that title to which the prescription is ascribed, as that title under which the present Earl claims, were both in the same person: For as John Lord Cochran was infeft upon the settlement 1680, so he was apparent heir of his father's infeftment, and possessed by virtue of both titles; and upon this medium, the argument for the Earl of Dundonald goes yet higher, that no prescription could run but from the death of Earl William last deceased, who was the apparent heir of the Lord Cochran, and in possession of his estate.
Replied: Earl William's lifetime and possession can never be deducted to stop the positive prescription: For 1mo. He was infeft in the years 1659 and 1662, publicly in most of all the estate, by a charter to himself and his heirs whatsoever, which was inconsistent with the settlements in the deeds 1653 and 1656; and therefore it may be, and is contended, that the prescription began even from the 1662: For, from that time, it was competent to the heirs male to have quarrelled that infeftment made to the heirs whatsoever, and either to have reduced it, or to have obliged Earl William to denude; and since that was not done, every purchaser from the Earl of Dundonald can found upon his possession from that time, to complete the prescription in their favour, and are not concerned to enquire what liferents were given or reserved by former settlements: There is a charter and sasine absolute, which is all the act of Parliament requires; and now there is a possession of sixty years in consequence of it. In the next place, Supposing the possession did only commence from the 1680, the years of the liferent are not to be deducted, because the fiar and liferenter, both of them, possessed upon the footing of the new conveyance, the public infeftment that reserved Earl William's liferent; so that in place of his possession being deducted, it expressly accresees to the conveyance 1680, as being in virtue of the same infeftment: In this case, the possession of the liferenter is plainly the possession of the fiar. As to the second part of the answer, That the Earl was non valens agree: 1mo, By the act of Parliament, this seems to be no objection to the positive prescription; otherwise the records can give no security. Persons can see who are infeft, and who in possession; but they never can know who are non valentes agere: And indeed the objection seems to be competent by our law, against the negative prescription only. But next, the maxim is entirely misapplied; for if it be not, there can never by a prescription: Any heir starting up at the end of a hundred years, was, in this sense, non valens agere; the succession was not devolved on him; the fault was his predecessor's, and not his; and non-existence would for sure be the strongest incapacity that could debar any heir. But this is not the meaning of the law: The incapacity must lie upon the person to whom the right does or might belong, during the course of the forty years; and therefore, if these persons to whom the right belonged during that time, were in a capacity to have interrupted the prescription, there is no place for the maxim. In this case, all the Earls of Dundonald from the 1680, were in a capacity to have interrupted. It is true, they chose not to do it; and so much the stronger is the prescription, when it is fortified by an express consent, as well as by a negligence or inactivity for so many years.
Objected for the Marquis, in the second place, to this head of the Earl's declarator: That William Lord Cochran's infeftment, in the Lordship of Paisley, was only a base infeftment, holden of his father the granter, not clad with possession, which was null by the law at the time; and therefore the posterior infeftment, upon the surrender of the same granter, in the year 1680, is the preferable right to the lands of Dundonald and Cochran, contained in the settlements 1653, and to the Lordship of Paisley, contained in the settlement 1656.
Answered, 1mo, That it was no nullity in base infeftments, not to be clad with possession: For even before the statute 1693, they were to all effects valid rights, excepting only in competition with posterior onerous public infeftments, or such base ones as implied warrandice first in possession: They were titles to force production of all infeftments, whether public or private; they excluded posterior arresters; they excluded the terce of the granter's relict, and were good in competition with posterior gratuitous rights flowing from the same author; (see Stair, 1. 2. t. 3. § 27. Bell contra Rutherford, No 2. p. 1260.; Spottiswood, voce Kirkmen.) All this is plain from the express words of the act 1540, which first introduced the distinction of base infeftments, clad or not clad with possession: That act presumed, and statuted upon the presumption, that whoever took a base infeftment, and allowed the granter to retain possession, did the sameex fraude to induce a second purchaser to give a price for the lands; and therefore statutes, “That persons having such base infeftments, shall not be heard against a second heritable possessor, by any title which implies warranty.” This is all the act provides, or needed to provide, there being no place for such presumption of fraud in the case of a posterior gratuitous infeftment. But 2do, Base infeftments not clad with possession, were always good against the heir of the granter, by an express clause in the same statute 1540. Suppose then John Lord Cochran had served heir to his grandfather Earl William, he could not have quarrelled the infeftment; but he was in the same case as if served heir, being liable præceptione hæreditatis, by accepting the disposition 1680, to fulfil his grandfather's anterior deeds. 3tio, This base infeftment was a good right in the person of William Lord Cochran, even in competition with any posterior, however onerous right flowing from the granter; in as much as the granter having reserved his liferent, the liferenter's possession was, in the eye of the law, the possession of the fiar.
Replied to this last article: The Lords have found, on the contrary, “That an infeftment by a father to his son, was not clad with possession by the father's possession, although he had a factory from his son, Gardiner contra Colvil, (infra h. t.)” And however it might be pretended, that if a third party should denude in favour of one in liferent, and another in fee, upon which deed a base infeftment followed, that in such a case the possession of the liferenter would clothe the whole base infeftment with possession, because the liferent and fee are one and the same right, originally constituted by one infeftment; and because the liferenter had no other infeftment in him, every person inquiring into the liferenter's, possession, could ascribe it to no other title than that infeftment: It is quite another thing, where a father is infeft in the property, then infefts his son in fee, with a reservation of his own liferent, and continues his own possession: For there his possession is not by virtue of his son's infeftment, but by virtue of his own right, which he hath reserved in so far as concerns his own liferent and possession; and so that possession of the father does not lead any person to find out the infeftment of the son: Having seen the father originally infeft in fee, they naturally ascribe his title to that, and enquire no further. But indeed the matter in this case does not principally hang upon a bona fides: It is the nature of the thing determines the question; where a father reserves his liferent, his son's infeftment is not at all his.
It was pleaded for the Marquis in the third place, against this conclusion of the declarator, That the rights made to William Lord Cochran, by his father, were not fully completed, no public infeftment, but a base sasine only without possession had followed upon them; besides, that the Earl had not fully acquired in the rights to the estate in his own person: And therefore since the dominium directum, yea in effect the whole real right remained with Earl William the granter, and that John Lord Cochran was himself the heir, and only person to whom the right of these base infeftments could devolve, and who could complete these titles, or take up the possession by virtue of them; it was optional to him, either to connect a right to these titles, and to insist against his grandfather to complete them, or to neglect those titles which remained, so lame and incompleted, and to take a split-new right from his grandfather, in whom the radical right still continued: And since he chose to do so, and did complete that new right by a public infeftment, no other heir coming after can set up these defective titles, in opposition to the new right 1680; which being granted, as said is, to the same person who was heir to these incompleted lame titles, did entirely absorb, and render them useless. And although this reasoning must, hold absolutely, had the infeftments 1653 and 1656 both been completed in suo genere; it holds much stronger with regard to the lands now in question, lying in the shire of Renfrew, that are contained in the deed 1653; because the sasine upon that deed was not registered in the register appointed for the shire of Renfrew, but only in the shire of Ayr, within which other lands lie, not now in dispute. The analogy of the decisions of the Lords goes a great deal further upon this point: They have sustained a wife's right to a terce, and a husband's right to the courtesy, where the husband or wife were infeft; upon a void title; upon this very foundation, That though the infeftment might be quarrellable, the husband or wife, as they were heirs to the bad infeftment, were heirs to the good; and though they possessed by virtue of the most lame, no heir could quarrel, because they might have taken up the good one; and it was the same by which they possessed, since the line of descent was one and the same in both. 2do, They have found that an apparent heir of an investiture might discharge the reversion of an apprising, so as to bar any after heir from quarrelling. These things were determined lately in the cases of Linton contra Blair*, and Mader contra Mader*. There is another case better known, and that is the case of the estate of Kincardine, infra h. t.: That estate was fold for the debts of Earl Alexander, upon whose titles the right of the purchaser and so many creditors stands; Earl Alexander's title was not by service to his predecessors, but by an apprising led against his elder
** See Heir Apparent.
brother Edward, the undoubted proprietor; which apprising was liable to many objections; the grounds of it were lost, itself satisfied by intromission, numberless nullities in it: Yet, since Earl Alexander had acquired it, and made it the title of his possession, when at the same time he was the apparent heir of the investiture, the Lords would not allow Earl Alexander's son to pass by that right, or to take up the right of Earl Edward his uncle against it. But the present case is stronger than all these: Those titles Were somewhat inconsistent with, and at best but collateral one to another. Here was only a lame title, which required a new deed of Earl William to complete it: It belonged to his grandson; and accordingly, without putting him to any trouble, he fully completed the right: Where is the defect in such a case? And here it may be further observed, that the conveyance in the 1680 being granted to the heir in those deeds 1653 and 1656, in pursuance of the obligations contained in these very deeds, the disposition itself granted to John Lord Cochran the grandchild, was of equal strength With, and did import a precept of clare constat, when it proceeded from the same person by whom such a precept fell to be given. Neither doth this import any defect in our records: Every body that looks into them must see, that the first infeftments were but base, flowed from Earl William, and by course did descend to John Lord Cochran; and consequently that the Completing the titles, by the same Earl, in the Lord Cochran's person, which they likewise see in the records, was agreeable to, and no more than a full implement of the first deeds.
To which the Earl made this answer, It cannot be pleaded, that the Earl of Dundonald's resignation in favour of his grandchild, does convey what was not in the resigner's person, but in the person of his son, and after his death, in hæreditate jacente of him. Neither does it in the least alter the case, that the superior's resignation in the present question, was in favour of the apparent heir of the vassal: For the apparent heir's taking infeftment on that surrender, gave him no more right to the property, than if made to a stranger; he became thereby superior it is true, but remained still but apparent heir as to the property: There was something more to be done to make a title to the property, he must thereafter have served, and infeft himself as heir to the vassal; or perhaps he might have done it, on a precept of clare constat granted by himself in his own favour; but without such infeftment, the property remained in hæreditate of William Lord Cochran the last vassal, to be taken up by his next apparent heir, who is the present Earl of Dundonald. Nor are the known and fixed forms of transmission of property, whether inter vivos, or from the dead to the living, ambulatory and precarious, to be observed or not, as one pleases: They have their foundation on principles firmly settled, “that property cannot be conveyed but by infeftment, nor one infeftment transmitted but by another.” Neither does it make the least difference, though the base infeftment had not been clad with possession; still it was a right in the person of a deceased ancestor, whereof he was never divested; it remains therefore in hæreditate, till an heir shall make up a title to it. Nor is the want of registration a solid objection; because it is not a nullity, but solely a ground of preference in a competition: Infeftments are notwithstanding real rights, and produce all actions which arise from real rights, though they may be defeated in a competition. See March 25. 1623. L. Dunipace*; March 24. 1626, Gray †; June 12. 1673, Faa contra L. of Pourie and L. Balmerinoch‡. 2do, They are always good against the granter and his heirs, which of itself is enough in this case: And the Lords found, 30th June 1705, Keith of Ludquhairn contra Sinclair of Diren§, “That the assignee of an heir, who had served to his ancestor infeft only by an unregistrate sasine, was preferable to a subsequent heir, making up his title to his ancestor last infeft by sasine on record.” It might to noticed, in the third place, That in some respects this argument is yet weaker than the former, of its being a base infeftment not clad with possession: For there was nothing to hinder John Lord Cochran to have registered his father's infeftment by warrant of the Lords, by which it had been as unexceptionable, as if registered within sixty days of its date, excepting only as to intervening competing rights: Stair tit. Compet. § 22. But now admitting that William Lord Cochran's base infeftments had been void, as either not clad with possession, or not recorded; nay, admitting there had been no infeftment at all, but only a naked personal disposition in the person of Willaim Lord Cochran, yet still unless a title had been made up to that personal disposition by some of the preceding apparent heirs, the present Earl must have the only title to that disposition, and lands thereby conveyed, notwithstanding the posterior gratuitous infeftment flowing to John Lord Cochran from his grandfather the superior. If the law stood otherwise, and that even a personal right could be passed over by the heir; or which is the case in hand, if John Lord Cochran could by law pass over his father's right, and complete a title in himself without noticing it: Then it is certain, that the acquiring a new right from his grandfather was no passive title to his father: so was our law before the statute 1695, and so is it still, if the heir past by has not been three years in possession: What then should have become of his father's onerous creditors? If his right was sopited by the new right taken from the grandfather, they were undone; for the acquirer was liable in no passive title, and year the right was carried out of the person of their debtor: A plain consequence, if the law stood as the Marquis pleads it. But this the justice of the law would never suffer: For though the acquirer was not passive liable, he could be charged by his father's creditors to enter heir to him; and upon his renunciation, disposition to the father could be adjudged. Is not that then a demonstration, that the surrender by his grandfather did not transmit his father's disposition? And if it did not, what can hinder the present Earl, who is the heir in that right, to take it up? It will not hold what is pleaded in the last place, That the disposition 1680 is virtually a clare constat. Id agitur by a precept of clare constat to transfer the infeftment of the ancestor; it is an infeftment given to the receiver qua heir; the direct contrary agebatur by the surrender 1680, sciz to give a new right, as if no such infeftment had ever been: It cannot then be equal to a precept of clare constat, when in effect, though in other words, it
* Durie, p. 61. voce Registration.
† No 1. p. 563.
‡ Stair, v. 2. p. 187. voce Non-Entry.
§ Forbes, p. 22. voce Registration
bears, that clare constat there was no right in the person of William Lord Cochran at all. And it may further be observed, there is no right given to John Lord Cochran by his grandfather, but what might have been given even in his father's lifetime; which therefore could never be a habile method of making up a title to the rights that were in his father's person.
“The Lords found, That the procuratory of resignation 1680, and charter and sasine following thereon, in favour of John Lord Cochran, joined with the subsequent infeftments and possession of his heirs, did not effectually establish, in the person of the last John Earl of Dundonald, granter of the bond of tailzie 1716, the property of the lands and estate wherein William Lord Cochran, son to the first Earl of Dundonald, died vest and seised by either public or base infeftments: And repelled the allegeance of prescription pleaded for the Marquis of Clydesdale, and also the allegeance of not registration of William Lord Cochran's sasine 1653 in the register for the shire of Renfrew, and that the infeftments 1653 and 1656 were not clad with possession: And found therefore, that the lands and estate wherein William Lord Cochran died vest and seised, and to which no title was made up by his successors, by service, precept of clare constat as heirs to him, or by disposition from him, are yet in hæreditate jacente of the said William Lord Cochran; and that the present Earl of Dundonald may serve heir to him, in such of the said lands and estate as are settled upon heirs-male.” See Prescription. See Service and Confirmation.
BRANCH V.
Apparent Heir, three years in possession.
There was a separate point insisted on for the Marquis, arising from the act 1695, by which an apparent heir, passing by another heir who had been three years in possession, is obliged to fulfil the deeds of that heir whom he passes by: Whence the Marquis insisted, That allowing the Earl of Dundonald to be apparent heir to William Lord Cochran, and that he can connect his title by a service; he must implement the deeds of the heirs who have been interjected between him and the said Lord Cochran, particularly the bond of entail 1716.
In answer to this it was contended, That the act of Parliament, subjecting the heir passing by to the debts and deeds of the intermediate apparent heirs, does not extend to gratuitous bonds of entail, or destinations of succession, made by such intermediate apparent heirs, and that it does by no means concern disputes among the several heirs, but singly such as arise between heirs and creditors; as is evident from the whole contexture and strain of the statute, especially when compared with the genius of our former law. It is inscribed in the Rubrick, an act ‘for obviating the frauds of apparent heirs:’ It proceeds upon the preamble “of the frequent frauds and disappointments that creditors suffer upon the decease of their debtors, and through the contrivance of apparent heirs to their prejudice;” and for remeid thereof, statutes, &c. Here is the abuse intended to be redressed, viz. “the frauds done to creditors upon the decease of their debtors;” and the statute ought not to be further extended, than in favour of those who were creditors to the deceased apparent heirs. The argument for the Marquis is laid singly upon the generality of the words debts and deeds. But as this is an extraordinary statute, contrary to the genius and analogy of all law, ‘That one can by his debts or deeds affect a subject to which he has no title;’ though so far as it goes, it must be binding, this much ought to be granted, that it is hot to be extended. For this reason it has justly been made a question, if, under the word deeds, direct conveyances were at all comprehended: And it is believed the late decision in the case of Muirhead of Drumpark,* was the first where it was so found: But then it proceeded upon this special ground, that being in a marriage settlement, it was an onerous deed: It was a debt on the granter, implying warrandice; wherefore the Lords thought such deeds fell under the reason of the law. It is material to observe, that the law requires a possession for three years by the intermediate heir, in order to make the heir passing by liable for these debts and deeds: The reason whereof can be no other than this, that bona fide contractors, by seeing a man so long in possession, were induced to believe he had completed his title to the estate: For had the intention been, to enable him, even while he had no title, to alienate the estate gratuitously, by a naked destination of succession, in prejudice of the next heir; what reason had there been for requiring a three years possession to capacitate him for this end? Would not the possession of one day have been as good as the possession of a year, if it had been in the intention of the statute at one blow to overturn the firmest foundations of our law?
‘The Lords found, That the Earl of Dundonald, by serving heir to William Lord Cochran, and passing by Earl John, maker of the gratuitous bond of tailzie 1716, is not by the act of Parliament 1695 obliged to fulfil the said bond of tailzie.’ See Heir Apparent. See Passive Title.
BRANCH VI.
A Person passing by an Apparent Heir, three years in Possession, and liable for his Debts, has recourse against his Representatives in any other Subject.
January 1727.
This question came afterwards to be debated betwixt the parties, Whether the present Earl of Dundonald, who enjoys the old estate as heir to William Lord Cochran his grand-father, who died last vest and seised therein, passing by the several intermediate Earls of Dundonald, who never made up the proper titles to that estate, but one after another possessed as apparent heirs of William Lord Cochran, shall, upon the act of Parliament 1695, be bound to pay the personal debts contracted by the said apparent heirs, without relief against the Marquis their representative, who as heir to them enjoys their proper estate?
And it was contended for the Marquis, That he is only heir of provision in virtue of the deed 1716, and as such liable for the debts only in the last place, after discussing of other heirs; and that he has relief on these other heirs, and such
* See Passive Title.
as in the construction of law are liable as other heirs; which is the Earl of Dundonald's case in consequence of the act 1695.
Answered, The act 1695 was introduced allenarly for the security of creditors, and to prevent their being disappointed of their money, where they contracted upon the faith of the apparent heir their debtor's being three years in possession; but by no means in favour of an heir, so as to give him relief of any debts to which he is liable qua heir served; nay it might even be thought a question, “If the creditor himself could have any benefit from the act, in such a case where the debtor hath an heir served, on whom an estate hath devolved sufficient for payment of his debt.” But be in that what will, it is enough to say, that the act of Parliament introduced only an accessory security for the creditors, and from a principle of equity made an estate, which really was not the debtor's, liable to his debt, because of his possession, and the bona fides of the creditor: But if the person to whom the estate truly belonged made the creditor secure, by paying him his money, there was nothing in law to hinder him to have his recourse against the proper heir of the debtor, either for relief, or by taking assignation, and insisting in name of the creditor.
‘The Lords found the Marquis of Clydesdale obliged to relieve the Earl of Dundonald.’ See Heir Apparent. See Virtual. See Passive Title.
Fol. Dic. v. 1. p. 87. Rem. Dec. v. 1. No 70. p. 138.
*** See Ross against Elliot, Durie, p. 491. voce Proof. See Auchinleck against Cathcart, Durie, p. 647. voce Obligation.
