A person purchased lands, on which his father had a wadset. Being heir to his father, the wadset became extinct confusione, and he was under no necessity to make up titles to it.
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Alexander Ross of Easterfearn, purchased a wadset upon the west quarter of Meikle Allan; and was infeft therein.
William Ross of Easterfearn, Alexander's son, purchased the irredeemable property of these lands, and was infeft; but made up no title to the wadset, in which he was apparent heir. He granted an heritable bond thereon to Captain David Ross his brother; to whom succeeded Alexander Ross, solicitor at law in London; and he assigned it to John Davidson, clerk to the Court of Justiciary.
Charles Robertson of Urchany, and others, led adjudications against Alexander, the son of William, as charged to enter heir to his grand-father; whereby they claimed to carry the wadset; whereas the heritable bond granted by William, could only affect the reservation, which was all that was in his person.
Pleaded for Mr Davidson; William Ross, who had a competent title to the property of the estate, and was apparent heir in the wadset, which was an incumbrance thereon, needed not to make up titles to the incumbrance; which, by coming into his person, became sopite. It is the common way of proprietors to rest upon one title, and neglect others which may belong to them; and if such accessory rights could be reared up by adjudications against their successors, to evict their estates from their disponees, it would shake the titles to very many estates. Agreeable to this doctrine was the decision 19th February 1710, Colonel Erskine against Sir George Hamilton, (see Competition) ; and 15th February 1750, on the Duke of Gordon's claim for the estate of Lochiel, it was found, That the Duke having entered heir to his grand-father in the estate, needed not be served to his father, in the adjudications he had thereon, and on that title had infeft Lochiel as his vassal, but had sufficient right to them by his apparency; and so was Lochiel's superior, on which title he claimed his estate, voce Forfeiture.
Pleaded for Urchany; There is no ipso jure extinguishing of feudal rights; but they must be taken away in a proper manner. The Earl of Dundonald disponed lands to his son the Lord Cochran, and infeft him base; and, on his death, disponed them to his grand-son, who was infeft; and disponed them to the Marquis of Clydsdale, No 3. p. 1262. It was found, that the disposition only carried the superiority; and the apparent heir, after his death, in the base infeftment, carried the property. And the like decision was given in the case of Menzies of Culterallers, and Dickson of Kilbucho. See Heir Apparent.
Replied; In both these cases the infeftment was in the superiority, and the disponers were apparent heirs to the property; but their onerous debts were sustained to affect the estate; and the subsequent heirs, making complete titles to the property, were preferred only to their gratuitous disponees.
Observed; That both superiority and property were irredeemable rights, and distinct; but a wadset was redeemable, and considered as an incumbrance on the property.
The Lords repelled the objection made to the infeftment granted by William Ross of Easterfearn, to Captain David Ross; and found, that the said William Ross having purchased the irredeemable right to the property of the west quarter of Meikle Allan, it was not necessary that he should make up a feudal title to the wadset of the said lands, that was in the person of Alexander Ross his father, and in which he was apparent heir; and that these incumbrances could not be taken up by the creditors of the said William Ross, or of Alexander his son, as rights preferable to the property that was vested in William Ross.
Reporter, Drummore.Act. Lockhart.Alt. R. Craigie.Clerk, Gibson.
Fol. Dic. v. 3. p. 162. D. Falconer, v. 2. No 235. p. 287.
