Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By JAMES BURNETT, LORD MONBODDO.

Lord Napier
v.
Captain Livingston

Date: 20 November 1761

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There were here two questions of considerable moment to our feudal system, which were debated among the Lords in abstracto, and shall be stated here in the same manner. A lady had a personal right to lands by precept and procuratory unexecuted: these lands held of a subject superior, and she made a strict entail of them, by granting procuratory for resigning them “in favour of herself and husband, and longest liver of them two in liferent and conjunct fee, for her husband's liferent use allenarly, and to A and his heirs male.” She died, and A, without making up any titles to her, infeft himself upon the precept in the disposition to her. The question was, Whether a service was not necessary to make up his titles to the precept and procuratory ?

It was Argued,—that it was not necessary,—1st, because he was a nominatim substitute;—2d, because he was no substitute at all, but a conjunct institute. As to the first point, the Lords were all of opinion, dissent tantum Kaimes, that though in personal bonds, as being of less moment, it was understood to be law that a nominatim substitute needed not make up titles, and though, in one case of an heritable bond, the same had been found, Lamington against Muir, 26th February 1675 ; yet, in the case of land property, no substitute can take without a service ; and, indeed, if it were otherwise, there would be an end of the progress of our land rights from the dead to the living. Upon the other point the Lords were more divided; and the President and Lord Coalston, from the favour which they thought was due to the purchaser from A, whose right depended upon the event of this question, were inclined to think that A might be considered as conjunct in the fee with the lady ; and they thought that the clause in the deed by which the lady reserved to herself a power to dispone, favoured this interpretation. But the rest of the Lords were of another opinion, and would not, upon any conjectures or presumptions, raise up so anomalous a right, and so unusual in the law of Scotland, by which each of the parties must be understood to have had the whole right in his person, so that partes tantum concursu faciebant, else the argument will go but to the one half.

The other question proceeded upon the supposition that the precept and procuratory vested in the person of A without service. The lady's disposition to A was a strict entail, and, in the infeftment which A took upon the precept contained in the disposition by the lady's author to her, all the irritancies and prohibitions were engrossed which were contained in the lady's procuratory of resignation. After this he executed the procuratory in the disposition to the lady, which had no clauses irritant, and got a charter of resignation from the subject superior, whereupon he was infeft, and then sold the lands. The question was, Whether the purchaser upon such a right was safe against the next heir of entail ?—By this way of making up his titles A had two rights in his person, one to the superiority and the other to the propery; the last was undoubtedly a limited fee, and if his title had stood upon that right singly, it is clear that the purchaser could not have been safe; but what made the doubt was, that he acquired afterwards the right of superiority, which, as the nobler right, all the Lords agreed, absorbed the other; so that the question was, whether he ought not to be considered as having only one right in his person, namely, the charter from the subject superior. Upon the question the Lords divided very much, and it carried, only by the President's casting vote, that the property in the person of A was a limited fee.

If the doctrine of the minority in this case be well founded, there is an easy way of getting free of all entails of lands held of subjects; which is, by purchasing the superiority; for then, the superiority being in fee—simple, and the tailyied property being absorbed in it, the purchaser will be safe, who, as Lord Alemore observed, is obliged to go no farther than the charter and sasine in which he finds the lands without any fetters. But I am of opinion that, in such a case, there are two distinct fees in the person of him who acquires the superiority; one of the superiority, in fee—simple, and the other of the property, in fee—tailyied; which two fees are of such a different nature that they will not unite and consolidate together, at least not ipso jure, for it is a different question what would have been the case if A had made a resignation ad remanentiam in his own hands.

Some of the Lords, in this question, carried their odium of entails so far as to think that the heir of entail taking a charter of entailed lands, from any body, without limitations, will enable him to sell: even a forged charter, some of them thought, would do so; and indeed the argument in this case in favour of the purchaser seems to go so far.

20th July 1762.—This interlocutor adhered to upon both points by a greater majority.