Subject_1 SUPERIOR AND VASSAL. Subject_2 SECT. VII.
Penalty on Superior for refusing to enter Vassals. - Superior possessing on Decree of Non-Entry.
Dickson v. Lord Elphinstone and Charles Elphinstone
Date: 1 July 1802 Case No. No. 28.
Tinsel of superiority takes place if the superior does not, on requisition, enter his vassal.
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Lady Clementina Fleming, who died 1st January, 1799, was the last person feudally invested in the estate of Biggar, and all the lands holding of it, which have since fallen in non-entry, have continued in that state. Among these were the lands of Persielands. The Reverend David Dickson, the proprietor, wishing to make up his titles, found he could not obtain a charter, as it was not settled which of Lady Clementina's two sons, Lord Elphinstone, or his brother Charles, was the heir of entail. Dickson executed a special charge, (26th May, 1801,) against both of them, and then applied to the Court of Exchequer for a charter supplendo vices; but it was found necessary first to bring an action of tinsel of superiority before the Court of Session, in which the defenders pleaded, That they had taken measures to remove the doubt which had hitherto prevented them from making up their titles.
The Lord Ordinary, (16th June, 1802,) “in respect of the reasons assigned for the delay in making up titles in one or other of the defenders, and as it is set forth, that an action has been raised for removing the difficulties that have occurred, sists procedure in this action till the third sederunt day in November next, with certification the Lord Ordinary will then proceed to give judgment in the cause.”
On reclaiming, the pursuer
Pleaded: Neither an heir nor a disponee unentered can exercise any substantial right of property over his own lands; he cannot pursue a removing against his tenant; he cannot settle provisions upon his wife and children; nor can he burden them in any way, however advantageously it may be for him: He cannot therefore remain long unentered, without, in some cases, evident loss, and in all very great inconvenience. For several years, this has been the situation of the pursuer; and the only answer made is, that an action is raised, which at some future period will obviate the difficulty. As it cannot be foreseen when this question will be determined, the pursuer cannot be obliged to wait the issue of a tedious contest, when the law has provided a remedy, by an application to the over-lord, in terms of the act 1474. C. 57.
The defenders
Answered: The statute does not apply to this case, when, by causes independent of his will, and obstacles over which he has no controul, the superior has himself been prevented from entering to a valuable estate, but only to the case where, by gross neglect or actual fraud of the superior, the vassal has been injured by his lands remaining in non-entry; for it requires the superior, “but fraud or gile,” to enter the vassal within forty days after being required; and if he “fraudfully differris his entrie,” he shall tyne his tenant for his lifetime. This forfeiture is penal, and common law requires an action of declarator to this effect, which is not an action of mere form, but to determine whether a delict really has been committed. In this case, a doubt existing, to which of the defenders the right to the estate of Biggar belongs, has retarded the completion of the feudal rights of the estate, which their absence from home, in the service of their country, has increased; but an action for this purpose is now in Court, and the form of a competition of titles admits of a speedy termination.
The Court held, that in this as well as in other old statutes, “fraud and gile” were synonymous with being in prejudice of the vassal; and as it was a serious prejudice to him to lie out unentered, that he could not be obliged to remain in this situation longer, till a doubt which might long ago have been brought to an issue should be settled.
“The Lords, &c. find, That the defenders have amitted and lost their right of superiority of the lands libelled, with the whole benefit and casualties of superiority libelled, and others that might have been payable out of the lands and others foresaid, and that during all the days of the life-time of the pursuer: Also find, That the pursuer, his heirs and successors, have right to obtain themselves infeft in the said lands by his Majesty, the immediate lawful superior of the said defenders, or their predecessors, in the foresaid lands, and that by virtue of a signature to be granted in Exchequer, in favour of the said pursuer and his foresaids, to be holden the said whole lands and others, during all the days of the lifetime of the said pursuer, of his Majesty and his royal successors, as superiors thereof, for payment of the feu-duty and others foresaid, as freely in all respects as the same might have been held of the said defenders, or either of them, having right to enter heir, as aforesaid, if they, or either of them, had been entered and infeft in the superiority of the foresaid lands and others: And find, that the said entry shall be as valid and effectual to the pursuer, and his foresaids, in all time coming, as if the said defender, or one or other of them, had been entered and infeft in the superiority of the foresaid lands, and thereafter the pursuer had been entered and infeft in the property thereof, as vassal to the said defenders or either of them; and decern and declare accordingly.”
Lord Ordinary, Balmuto.For the Superior, Glassford.Agent, R. Hill, W. S.For the Vassal, Dickson.Agent, A. Gibson, W. S.Clerk, Menzies.
Fac. Coll. No. 51. p. 104.
