Scottish Court of Session Decisions

Subject_1 PART and PERTINENT.

Earl of Argyle
v.
George Campbell

Date: 15 January 1668
Case No. No 11.

Infeftment in a barony carries a burgh of barony, though not expressed.

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The Earl of Argyle pursues George Campbell to remove from a tenement of land in Inverary, who alleged no process, because, the pursuer produces no infeftment of this burgh, or tenement therein. The pursuer answered, That he produced his infeftment of the barony of Lochow, and offered him to prove, that this is part and pertinent of the barony. The defender answered, That this burgh cannot be carried as part and pertinent, but requires a special infeftment; 1st, Because, by the late Marquis of Argyle's infeftment, in anno 1610, produced, this burgh is exprest, and not in the pursuer's infeftment; 2dly, Because in the pursuer's infeftment, there are exprest particulars of far less moment; 3dly, Because a burgh of barony is of that nature, that it cannot be conveyed without special infeftment. The pursuer opponed his infeftment of the barony of Lochow, which is nomen universitatis, and comprehends all parts of the barony, although there were none exprest, and therefore the expressing of this particular in a former charter, or less particulars in this charter, derogate nothing; it being in the pursuer's option to express none, or any he pleases; and albeit, in an infeftment of an ordinary holding, without erection in a barony, mills, fortalices, salmond fishings, and burghs of barony cannot be conveyed under the name of part and pertinent, yet they are all carried in baronia, without being exprest.

“The Lords repelled the defence in respect of the reply, and found that this being a barony, might carry a burgh of barony as part and pertinent, though not exprest, albeit it was exprest in a former infeftment, and lesser rights expressed in this infeftment.”

The defender further alleged no process, because the pursuer's infeftment is qualified, and restricted to so much of the estate, as was worth, and paid yearly L. 15,000, and the surplus belongs to the creditors, conform to the King's gift, likeas the King granted a commission to clear the rental, and set out the lands to the pursuer, and to the creditors, who accordingly did establish a rental, wherein there is no mention of the lands of Inverary, and therefore they cannot belong to the pursuer. It was answered for the pursuer, That he oppones his infeftment, which is of the whole estate, and whatever reservation be in favours of the creditors, it is jus tertii to the defender. It was answered, That the defender's advocates concurred for a number of the creditors, whom they named, and alleged that they would not suffer the defender to be removed, seeing they only can have interest to these lands in question. The pursuer answered, That the creditors' concourse or interest was not relevant, because they have no real right or infeftment, but only a personal provision, that this pursuer shall dispone and resign the surplus of the estate in their favours, or otherwise pay them 18 years purchase therefor at his option, whensoever they shall insist via actionis, the Earl shall declare his option, but they having no infeftment cannot hinder the donatar to remove parties having no right, which is the creditors' advantage, and cannot be stopped by a few of them, likeas the whole barony of Lochow is set out by the said commission, to the pursuer himself, conform to their sentence produced.

“The Lords did also repel this defence, and found that the provision in favours of the creditors, could not stop this removing.” Personal and Real.

Fol. Dic. v. 2. p. 25. Stair, v. 1. p. 505.