Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 WARRANDICE - SUPERIOR AND VASSAL.
Subject_3 Heir of one selling with Procuratory and Precept, not bound to enter with the superior.

Thomas Dundas of Fingask
v.
Mrs Agatha Drummond of Blair

Date: 10 February 1769

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[Faculty Collection, IV. 335; Dictionary, 15,035.]

Auchinleck. I have always considered that when a man sells an estate, with an obligation to infeft, a me, or de me, and, for this purpose, grants procuratory and precept, that this is a good and regular obligation; but, as soon as he grants the procuratory and precept, he is functus, and the disponee has right to use either the one or the other. If the disponer had not a complete title, there is recourse against him; but, if he had, he has no farther concern. Why should we oblige a disponer to keep up lands in his rights after he has sold them? According to Mr Dundas's argument, he ought to continue the lands in his charters, were it for 500 years. The present question is of great moment to the land rights in Scotland. If this were an estate held of the crown, the argument would be the same; and thus Mrs Drummond would be obliged to take out a charter from the crown for the single conveniency of the vassal: and this obligation might often recur, to her great detriment and expense, without any possibility of advantage.

Pitfour. The reason of the obligation to infeft, and of the warrandice, is in case the disponer happens not to have a full right to the lands.

Monboddo. It seems to be admitted that Mrs Drummond might enter if she pleased. The question is, Whether does the warrandice oblige her to enter? If Mr Dundas had a precept, and no procuratory, he might have compelled Mrs Drummond to enter. Why should his right be diminished by having both procuratory and precept?

President. When there is only a precept, there remains a superiority,—a real estate in the superior; but, when there is a procuratory, there is a right defeasible at the will of the vassal; and this makes the difference.

Gardenston. Had this method of disappointing the superior been lawful, it would have been discovered long ago.

On the 10th February 1769, “The Lords found that Mrs Drummond could not be obliged to enter with the superior, and therefore assoilyied, and found expenses due;” altering the interlocutor of Lord Monboddo.

Act. H. Dundas. Alt. R. M'Queen.

Diss. Monboddo. He was much hurt with this interlocutor: he said to me, “Will you leave us no law?”