Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 CONQUEST.
Subject_3 A father had taken a disposition in favour of himself and his wife, in conjunct fee and liferent, for the wife's liferent, and to their son in fee, with a reserved faculty to burden without the consent of either. Afterwards, he took a disposition to other lands in favour of himself and his wife, in liferent, and to their son in fee; whom failing, to the father's nearest heirs or assignees in fee. On the failure of father and son, the succession devolved on the heir-of-line, not of conquest.

George Boyd of Parkhead
v.
John Boyd of Threaprig

Date: 28 June 1774

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[Faculty Collection, VI. 315; Dictionary, 3070.]

Monboddo. Here is a charter of resignation, not a confirmation or precept of clare constat. I make no doubt that the father meant to make up his titles by a charter of confirmation; but we must not overturn the law to sanctify his blunders: my doubt is, whether there is not a præceptio hæreditatis in the son? The father meant to save the son the expense of a service.

President. It would be dangerous to go against the words of a deed.

Coalston. The deed might have been liable to a reduction on the Act 1621; but then the son would have been liable in valorem only, not on the passive title of præceptio hæreditatis.

Pitfour. It is a principle in law, that duo non possunt esse domini ejusdem rei eodem tempore in solidum. In the ease of Captain Livingston against Lord Napier, the Court adhered strictly to feudal forms, and the House of Lords affirmed its judgment.

[He said a great deal more; but his voice is so low that no one could hear his argument.]

On the 28th June 1774, “The Lords preferred the heir of conquest.”

Act. W. Baillie. Alt. R. M'Queen. Reporter, Coalston.