Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 CONSOLIDATION - SUPERIOR AND VASSAL.
Subject_3 Of property and superiority not effected ipso jure, or without resignation ad remanentiam: Whether a conveyance of property, along with superiority, granted by the superior who had only the dominium, directum, and accepted by the vassal, be valid as to all other parties?

Lilias Bald and Husband
v.
Jean Buchanan

Date: 16 November 1786

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[Faculty Collection, IX. 408; Dictionary, 15,084.]

President. A resignation ad remanentiam is necessary, in order to consolidate property with superiority. This is agreeable to feudal principles, and the opinion of the elder lawyers. If any errors have been committed in practice, these must be avoided hereafter.

Braxfield proposed that the ratio decidendi should be mentioned in the interlocutor.

Monboddo. The judgment of Craig is express on this point.

Eskgrove. Craig speaks only of a resignation in favorem, and not of resignation ad remanentiam.

On the 16th November 1786, “The Lords found that the superiority of Wester Common, vested in the person of William Buchanan, under the infeftment 1707, and that the property vested in his person under the infeftment 1731, remained separate and distinct estates; and therefore, that the property could not be carried by the special service and infeftment, which was afterwards expede in the person of Archibald the second, in respect that no resignation ad remanentiam, consolidating the property with the superiority, had been expede in the person of the said William; therefore repelled the plea of consolidation, and also of prescription and confirmation, and other defences, and sustained the reasons of reduction, so far as respects the lands contained in the contract of marriage 1730.”

Act. Matt. Ross. Alt. Ilay Campbell. Reporter, Justice-Clerk.

Diss. Eskgrove. Non liquet, Rockville.