Subject_1 MEMBER of PARLIAMENT. Subject_2 DIVISION IV.
Decisions common to qualifications upon the old extent and valuation.
Subject_3 SECT. VI.
Apparent Heirs.
John Murray of Philiphaugh v. Dr John Nielson
Date: 5 March 1755 Case No. No 179.
An apparent heir of a naked superiority, found entitled to be enrolled as a freeholder.
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Samuel Nielson, at his death, left a disposition of his lands of Etrick-house, to certain trustees for uses. The disposition contained procuratory of resignation, and precept of sasine, in the usual form. Dr Nielson, the defender, his immediate elder brother, was served his heir of conquest in general. The trustees obtained themselves infeft base to hold of the heir; and, for a sum paid, they granted in his favour a discharge and renunciation during his life, of the procuratory of resignation, binding themselves, during his life, neither to execute that procuratory, nor to obtain a charter of confirmation of their base infeftment, nor of adjudication in implement of the disposition. The Doctor produced to the freeholders of the county of Selkirk his brother Samuel's titles, and his own general retour, together with the discharge and obligation above-mentioned; and was thereupon enrolled as apparent heir of conquest to his brother.
John Murray, the pursuer, offered a complaint against this enrolment, and objected to it, 1mo, That an apparent heir to a naked superiority cannot be said to have such possession as seems to be required by the act 1681, Cha. II. p. 3. cap. 21. namely, a possession of the rents and profits.
2do, That Samuel, the predecessor, was denuded by the disposition to the trustees; and that the effect of that disposition could not be said to be taken off by the discharge and renunciation which the trustees had granted; for that an apparent heir can only be enrolled in respect of his predecessor's titles; whereas this is a new title in favour of the heir, which cannot aid the predecessor's title; and this seems to be admitted by the Doctor's paying a sum in consideration of it.
3tio, The renunciation of the power of using the procuratory during the Doctor's life, is only a personal obligation upon the trustees; it would not bind purchasers; and though it might make the trustees liable in damages, yet it does not prevent even them from executing the procuratory, or from obtaining a charter of confirmation. In short, the whole circumstances show this right of Dr Nielson's to be nominal, fictitious, and created on purpose to enable him to vote for a Member of Parliament.
Answered for Dr Nielson to the first objection; That he is as fully in possession as an apparent heir can he, and as a naked superiority will admit of.
To the second; That, by the law of Scotland, a disposition does not denude the disponer. He is held to be the vassal, until denuded by the infeftment of the disponee, and, as such, would be entitled to vote, were it not for the statutes made which appoint freeholders to take the oaths of possession, and that they are under no obligation to convey their rights. For this reason, if a disposition shall be repudiated or discharged, it is as much annulled, and the disponer is as fully in possession, and as little under any obligation to convey, as if the disposition had never been made. And this rule is equally applicable, whether the disposition is discharged as to the whole subjects contained in it, or only as to part of them; whether both as to the superiority and property, or as to the superiority alone. Neither does it make, a difference, whether this discharge be granted before or after the disponer's death; for, in either case, it is not a new right, to which new titles must be made up; it is no more than a document that the possession is continued, and that there is no longer an obligation to convey to another; and the heir's giving a consideration for the discharge and obligation, is no admission that it is a new right.
To the third; That it is sufficient if the defender's right be properly established, and cannot be lawfully destroyed or impaired. The law presumes not any man's fraud; quæ contra bonos mores sunt, nec facere nos posse credendum est.
“The Lords repelled the objections to the defender's qualification, and found, That he is sufficiently entitled to continue on the roll of freeholders for the shire of Selkirk; and therefore dismissed the complaint.”
Act. Montgomery.Alt. Ferguson.Clerk, Forbes.
Fol. Dic. v. 3. p. 425. Fac. Col. No 149. p. 222.
