Scottish Court of Session Decisions

The respondent Ferrier, as trustee for Captain Malcolm M'Neill, having sold the estate of Gallochilly to the late Sir Charles Macdonald Lockhart, Sir Charles's representatives stated various objections to the progress of titles offered with the property. In order to obtain the judgment of the Court upon these objections, they brought a suspension as of a threatened charge by Ferrier for the price. A record was made up, and the case was reported by the Lord Ordinary to the Court. In the course of the proceedings most of the objections were obviated; the only point of law remaining, and which was ordered to be discussed in minutes, having reference to the retrospective effect of a confirmation in validating a precept of clare constat granted by a proprietor unconfirmed.

The state of the titles objected to was as follows:—In 1789, Roger M'Neill sold the mid-superiority of certain of the lands of Gallochilly to Dr James M'Neill, the disposition containing an obligation to infeft a me only, procuratory of resignation, and precept of sasine. On this disposition Dr M'Neill was infeft, and his sasine recorded, but neither were confirmed by the Duke of Argyll, the superior. The proprietor of the dominium utile of these lands was, at the time of this sale, Daniel M'Neill of Gallochilly. He died in 1796, and was succeeded by Daniel M'Neill (2d), who made up his title by a precept of clare constat from Dr M'Neill, and infeftment thereon. Upon the death of Daniel (2d) in 1803, his brother, Hector M'Neill, in like manner, made up his title as heir of this party by a precept of clare constat from Dr M'Neill, and infeftment thereon. Dr M'Neill died without completing his title to the mid-superiority by confirmation. In 1817 Hector acquired from the Duke of Argyll the over-superiority of the lands, to which he afterwards completed his title. Upon his death, his brother, Captain Malcolm M'Neill (Mr Ferrier's author) was served heir of line and of conquest to him in these lands. Malcolm was duly infeft, in 1826, on a precept from Chancery, and his sasine recorded. Thereafter Dr M'Neill's heir having made up a title to the mid-superiority, Ferrier, as commissioner for the over-superior, granted a charter, confirming the title so made up, and also the disposition of 1789 in favour of Dr M'Neill, and the sasine thereon. This charter of confirmation was granted in 1834, and sasine was expede thereon.

To this progress the suspenders objected;—

The precepts of clare constat granted by Dr M'Neill to Daniel and Hector M'Neill, while his own title was not good, and while he had no power to grant such writs, have not been effectually validated by the charter of confirmation in 1834, granted after the death of all these parties. The effect of a precept of clare constat is limited; it is not to be confounded with a precept of sasine, or a procuratory of resignation, which retain their virtue after the death of the granter and grantee. The precept of clare constat, on the other hand, is expressly excepted from the statute 1693, c. 35. It falls by the death of the granter or of the grantee. Unless it is effectually granted and effectually executed during the lives of the granter and of the grantee, it perishes. The granter alone can give validity to it—the grantee alone can act upon it. In the present case, therefore, it was impossible by any subsequent proceeding to give validity to the precepts in question, or to the infeftments following thereon; and the title offered to the suspenders is consequently bad.

To this it was answered;—

The charter of confirmation confirming the disposition and infeftment in favour of Dr M'Neill draws back to the date of his sasine, and consequently validates the precepts of clare constat subsequently granted by him. It is a settled principle in conveyancing that a charter of confirmation operates retro, and gives to a public holding the same force as if it had been confirmed immediately after the grant, provided always no mid-impediment intervene. A public right, while unconfirmed, is not a nullity; it is merely an incomplete right, which does not receive effect as a complete feudal investiture until confirmation, which, however, when granted, immediately accresces, and validates all intermediate deeds. ¹ It is equally settled, with regard to a public right remaining unconfirmed, that the death of the superior or of the disponee, or of both, does not act as a mid-impediment, so as to interfere with the retrospective currency of the confirmation. ( Lord Johnston v. Lord Queensberry, July 17, 1634 (3020), and Dirleton's Doubts, p. 45). But if these propositions are well founded, there is no legal principle for the suspenders' objection. There is nothing so peculiar in the nature of precepts of clare constat as to withdraw them from the operation of these rules, confessedly applicable to procuratories of resignation and precepts of sasine. Want of power on the part of the granter would apply with equal force to the one class of instruments as to the other. Nor has the statute 1693, c. 35, any application to the present question; for here the precepts of

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¹ Henderson v. Campbell, July 5, 1821 (ante, I. 103, new ed. 104).

clare constat granted by Dr M'Neill in favour of Daniel and Hector M'Neill were duly executed during the lifetime of these parties. The provisions of the act bear no reference to the title of the granter, but apply exclusively to the execution of the precept, leaving the title to be regulated by the ordinary rules of feudal law. The suspenders' argument is limited to this, that the precepts were not “effectually” granted; which brings them back to maintain, that Dr M'Neill had no title in his person at the time, or, in other words, no power to grant. Now, as regards the question of power, it matters not whether the instrument be a precept of clare constat, a procuratory of resignation, or a precept of sasine. It is admitted that the grantee, while holding in virtue of a public right unconfirmed, is not legally empowered to grant any of them. But as the very effect of confirmation is to give to the deeds of those holding such public rights the same efficacy as if they had been confirmed at the time, it seems to follow, that there is no ground for excluding precepts of clare constat, followed by sasine, from the benefit of the rule. The case of Lord Johnston v. Lord Queensberry, and the opinion of Lord Dirleton, intimated in the passage above referred to, are authorities in favour of this view. They were both prior to the passing of the act 1693, and the principles there laid down had reference to the state of the law when procuratories of resignation and precepts of sasine fell by the death of the granter or receiver before execution. At that period they stood on the same footing with precepts of clare constat at the present day; and since in former times, prior to the act 1693, charters of confirmation were held to validate infeftments following on procuratories and precepts, although not granted till after the death of the granters and grantees, there is clear authority for holding that the same rule extends to precepts of clare constat.

The case was this day put out for advising.