Method of obtaining infeftment where property and superiority coincide in one person. - Method of obtaining it by a singular successor, after resignation is accepted of. - Where the precept does not specially mention the lands. - Method of infefting a Remainder-man. - Where a disposition is adjudged, not containing precept of sasine. - Base infeftment competing with a public right.
John Murdoch, Merchant in Glasgow, v. Samuel Cheslie, Merchant in Glasgow
Date: 29 January 1766 Case No. No 39.
Infeftment taken on a procuratory of resignation which had formerly been executed, null.
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By contract of marriage, in 1688, between John Herbertson, the eldest son of George Herbertson, merchant in Glasgow, and Janet Bell, George Herbertson the father, disponed certain tenements in Glasgow, to his said son and spouse in conjunct fee and liferent, and to the heirs and bairns of the marriage in fee.
Upon the procuratory of resignation contained in this marriage contract, John and his wife were infeft in 1694; and, upon this title, John, after his father's death, possessed these tenements till his own death, which happened in 1722.
John Herbertson, of his marriage with Janet Bell, had a son named John, and several younger children. Upon the death of John the father, John, the son, served himself heir in general to his father, and thereafter caused resignation to be made by the procurator of George, his grandfather, in the hands of the Magistrates of Glasgow, his superiors; and upon this resignation he was infeft in 1723.
John the father, and John the son, had both contracted considerable debts, upon which the creditors led adjudications. Against John the son, two of these adjudications were led by Samuel Cheslie, and two by John Murdoch.
Cheslie's adjudication proceeded against John the son, without any special charge to enter heir to his father.
Murdoch's adjudication proceeded upon special charges against John the son to enter heir in special to John the father, and to procure himself properly infeft as such.
When these creditors came to be ranked, it was objected by Murdoch, against Cheslie's adjudication, that, as the infeftment of John the son had proceeded upon the procuratory of resignation granted by George the grandfather in his son John's contract of marriage, which procuratory had already been executed in the person of John the father, it could not again be executed by John the son; and consequently the infeftment in favours of John the son, proceeding on said procuratory of resignation, was void and null, and of course the adjudication led by Cheslie must be void, as not proceeding upon a special charge.
Answered for Cheslie; This is too critical an objection to be laid hold of to void the diligence of a lawful creditor. Supposing the infeftment of John the son to have no support from the procuratory of resignation, the infeftment itself was neither irregular nor improper, but such as the Magistates were bound to grant, not only in respect of the notoriety of John being his father's eldest son, and consequently his heir general, and of line, but more especially in respect of his general service, tanquam legitimus et propinquior hæres to his father; and as the Baillies could have been compelled to grant such infeftment, the sasine could not be cut down; because the infeftment also proceeded upon the resignation in the contract of marriage, as supposing it not to have been properly executed before; superflua non nocent, et utile per inutile non vitiatur.
In support of what was pleaded for Cheslie, the followed authorities were cited; Lord Bankton, v. 1. b. 2. tit. 3. § 7. par. 68.; Renton contra Feuars of Coldingham, 20th Jan. 1666, voce Virtual; Livingston contra Menzies,, 22d Jan. 1706, voce Representation; and Bell contra Carruthers, 21st June 1749, Ibidem.
For Murdoch, the decisions Edgar contra Maxwell, 21st July 1738, voce Representation; Marquis of Clydesdale contra The Earl of Dundonald, 26th Jan. 1726, voce Virtual; and Landale contra Landale, 12th June 1752, voce Service to Heirs, were referred to.
'The Lords found the infeftment of John the son void, and preferred Murdoch.'
For Cheslie, Lockhart.For Murdoch, Jo. Dalrymple.
Fac. Col. No 33. p. 56.
