Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. collected by JAMES BURNETT, LORD MONBODDO.

Kay
v.
Sir Robert Gordon

Date: 3 July 1767

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This was a question concerning the proving of the tenor of a right to land, in which the Lords found:—1mo, That where the right consisted of a contract of alienation and a charter from the granter following thereupon, it might be proved by parole evidence, without any adminicle in writing, that the contract contained a procuratory of resignation. This I thought a dangerous decision, as those old contracts of alienation (for this was in the 1675,) do not ordinarily contain a procuratory of resignation, and the charter following upon it to be held of the granter, according to which the possession has been ever since, is a presumption that it did not.

2do, That the charter being proved by a written adminicle, viz. the sasine upon it, which sasine did not bear the holding, it might be proved by parole evidence that the holding was blench, especially as the possession had been accordingly.

3tio, There being a deed of settlement of the same lands upon certain heirs, with clauses irritant and resolutive, and there being a written adminicle of the deed with the substitutions, but no such adminicle of the irritant clauses, the Lords found that the deed was proved without those clauses, as the defender had no interest in them. And, lastly, The Lords found that a clause of pre-emption in a contract of alienation might be proved by witnesses singly, without any adminicle in writing; but this I think was a most dangerous judgment, and, as it was of little or no importance to either party, was not sufficiently considered by the Lords.