Dubious Clauses. - Revocation of a Tailzie. - Liberty to contract Debt. - Conjunctly and Severally. - Just and Lawful Debts. - Liferent and Fee. - Back-Bond. - Importing Property or only Servitude.
Earl of Wigton v. Feuars
Date: 23 January 1739 Case No. No 40.
A disposition, with parts and pertinents, joined with uninterrupted possession, found to confer property, not servitude, in a common. The words, with liberty and privilege of the commonty, found to import only servitude. The Words, with parts and pertinents, and common pasturage, used and wont, found to import only servitude.
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The commonty of Biggar, lying within the barony of Biggar, did once belong in property to the family of Wigton, and in all probability had been possessed in common by the tenants of the family surrounding the same: The possessions lying about the common were feued out at several times; and the vassals continued their possession of the common in the same way that the tenants of the family had done before. The Earl of Wigton insisting in a division of the common, claimed the præcipuum as, proprietors.—The defenders insisted, That they were conjunct proprietors; and the Lords found, That a disposition with parts and pertinents, joined with an uninterrupted possession of the muir, as extensive in all respects as the pursuer's possession thereof, doth constitute a right of property; but where a disposition was in these terms, with liberty and privilege of the commonty of Biggar, they found it only to import a right of servitude.—They further found, that this clause, with parts and pertinents, and common pasturage used and wont, doth only import a right of servitude, unless the feuar condescend upon some special right of common pasturage belonging to his lands, other than that upon the said commonty; to which the general words of common pasturage may apply. See Servitude.
