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.
Marshall & Ruthven v. Jean Wight
Date: 1 March 1782 Case No. No 41.
How an adjudger of a disposition, containing a procuratory of resignation, but no precept of sasine, must obtain infeftment.
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Cuming having right by disposition, containing procuratory of resignation, to a house in Edinburgh, disponed it, in the year 1771, to Beveridge; and, for completing his right, assigned to him the unexecuted procuratory.
Messrs Marshall and Ruthven, creditors of Cuming, in the year 1777, deduced an adjudication against this subject, and thereon obtained infeftment from the Magistrates of Edinburgh.
In the year 1779, Mrs Wight, as representing Beveridge, the disponee, executed the procuratory, and was infeft. A process for selling Cuming's subjects, including this house, having been commenced, Mrs Wight insisted that it should be excepted; and
Pleaded, The common debtor's right to this house was only personal, consisting of a disposition, and an unexecuted procuratory. An adjudication against him could only carry that right, and could no more warrant the infeftment which followed, than a disposition containing a procuratory could entitle the disponee to take infeftment, without resigning on the procuratory. The infeftment was, therefore, inept and void; and the adjudication being thus reduced to a personal right, cannot compete with the complete feudal title in the person of Mrs Wight. The proper steps to have been pursued by Marshall and Ruthven, in this case, for completing their diligence, were, to have recovered the procuratory in favour of the debtor, and, upon their adjudication, and that evident, to have made resignation in the hands of the Magistrates; or, in consequence of the personal right vested in them by the adjudication, to have led an adjudication in implement against the author last infeft.
Answered for Marshall and Ruthven, A creditor obtaining a general adjudication is never in possession of his debtor's title-deeds; and without these he cannot, like a voluntary disponee, perfect his right, according to strict feudal principles, by executing unexecuted procuratories, and completing his title to other personal rights, on which the subject adjudged may have been possessed for centuries, and by a variety of proprietors. Nor can the expedients suggested by Mrs Wight remove these difficulties. It has been found, Spottiswood, voce Exhibition*, that a debtor is not obliged to produce a progress; neither is it probable, that he would readily fulfill an obligation of this kind to a creditor adjudging his estate. And, as a pursuer in an action of adjudication in implement, must libel the titles of the person last infeft, the same obstacles would there occur to an adjudger of a personal right, which have obliged the creditors in this case to take an infeftment directly from the Magistrates.
But there must be a mode known in law, by which real rights, whether complete or not, may be attached by the diligence of creditors; and the feudal forms, in this matter, as in all others, must be accommodated to the exigencies of the country where it is introduced. Hence, although a voluntary disponee in a burgage tenement must make up feudal titles by resignation; yet an adjudger may obtain infeftment upon the title of his adjudication alone. Indeed, there appears no greater stretch in the law's authorising an adjudger from a person not infeft to obtain infeftment without the circuit of resignation, than where the debtor was actually infeft. In both cases, the law does for the debtor what the debtor ought, but declines to perform; and the interposition in both is absolutely necessary for the satisfaction of creditors. This argument is supported by the uniform stile of decreets of adjudication, which, without regarding whether the debtor was infeft or not, directs “the adjudger to be infeft by the immediate lawful superior, on a charge of twenty-one days, in the same way as the debtor, and his predecessors and authors, have holden, or might have holden the same.” And it is likewise confirmed by the constant practice in such cases, proved by certificates from the Clerk of Chancery, and one of the Principal Clerks of the City of Edinburgh, bearing, that charters of adjudication, which, by the form of these writings in burgage
* See Title to Pursue.
tenures, contain both charter and infeftment, are expede in the manner followed in the present instance, whether the debtor's right was personal or otherwise.
Replied for Mrs Wight, A creditor, trusting to one in the personal right of a feudal estate, is, no doubt, in a worse situation than one whose debtor is infeft. But that is an inconveniency to which he has exposed himself, and from which he can no more be relieved, on principles of equity, than a creditor of an apparent heir, who, without the formalities required by law, has attempted to attach an estate not vested in his debtor by service. The certificates produced have been obtained from persons who are ministerially employed in expeding charter of adjudication and resignation, but who have no access to know in what manner parties obtaining these charters have completed their rights. Far less can these certificates go the length of establishing, that an infeftment, taken in the manner here adopted, would be sustained in a Court of law.
The Lords sustained the objection to the infeftment, founded on by Marshall and Ruthven.
Reporter, Lord Alva.For Mrs Wight, Ilay Campbell.For Marshall and Ruthven, Rae, Mat. Ross.Clerk, Orme.
Fol. Dic. v. 3. p. 318. Fac. Coll. No 41. p. 67.
