Click here to view a pdf copy of this documet : PDF Copy
The Countess of Callander disponed the estate of Westquarter, “to and in favour of herself and her husband, James Earl of Findlater, and the longest liver of them, in life-rent and conjunct fee, and for the said Earl’s life-rent use allenarly, and to James Livingstone, and the heirs-male of his body; whom failing, such persons as the said Countess should name, by a writing under her hand; and failing said nomination, to the said James Livingstone’s heirs and assignees whomsoever;” all under the usual prohibitory, irritant, and resolutive clauses. The Countess died without ever having been infeft in the lands. James Livingstone, in his minority, was infeft on an unexecuted precept in a deed granted to the Countess, which was assigned to him in the deed of entail, and which contained all the conditions of the entail; and his father put the entail on record; but, on coming of age, James Livingstone resigned the estate in the hands of the superior, and obtained a charter free of all the restrictions of the entail; whereupon he soon after sold the lands, which came by progress into the possession of Lord Napier. Several years after the death of James Livingstone, his brother served heir of tailzie and provision to the Countess of Callander, under the last substitution of nearest lawful heir whatsoever to James, and brought an action to set aside the conveyance to Lord Napier and his authors, on the grounds, Imo, That James Livingstone had made up no title to the estate, that a service was necessary, and without it the infeftment and subsequent charter were of no effect; or, 2 do, If James Livingstone was held to have completed his title, he was bound by the conditions of the entail, which had been inserted in his first infeftment; and, in either case, the deeds in question were null, and ought to beset aside. Urged in defence, That James Livingstone was joint fiar with the Countess, and not a substitute, and consequently not bound by the fetters of the entail. The Lords found, That James Livingstone was called to the succession as heir substituted to the Countess, and as the Countess’ right was personal and complete, a general service of James to the person last infeft was necessary, and therefore that his base infeftment did not vest the lands.—See Livingstone against Napier, 9th March 1757, No. 38. p. 15409.
