BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Hay v Creditors of Muirie. [1681] Mor 13391 (23 February 1681)
URL: http://www.bailii.org/scot/cases/ScotCS/1681/Mor3113391-018.html
Click here to view a pdf copy of this documet : PDF Copy
Recognition is not incurred, unless the major part of the ward-fee be alienated by deeds consisting together at the same time.
1681. July 7.—An infeftment for relief of cautionry, being only conditional in case of distress, was found not to be like an infeftment of annualrent for a pure debt, to be computed as an alienation for the full sum in the bond, unless distress had followed; and the cautioners having paid the sum, and taken assignation, without distress, made no difference; but it was found, that it might be conjoined as a conditional distress by hazard; so that, for instance, if the half of the fee should be alienated, such an infeftment for relief might be computed at some certain value to infer an alienation of the major part; for the Lords thought, that even a wadset, though of the whole barony, if there was a back-tack for payment of the annualrents, would not infer recognition, unless the sum exceeded the value of half of the barony.
1683. March 15.—But infeftment for relief, bearing, that the cautioner was distressed, and therefore disponing for his relief, declaring his entry to be at a certain term, and that he should apply his intromissions towards payment of the debt; was a sufficient ground of recognition quoad valorem of the sum.
Discontiguous lands were all contained in one charter, bearing one reddendo. It was pleaded, That the major part of the whole must be alienated to infer recognition of any part. Answered, Lands are united, either naturally, when contiguous, or civilly, when discontiguous. Lands are united by a formal clause of union into one barony or tenement, and the charter in question containing no formal union, but only a dispensation, to take off the necessity of several sasines in the discontiguous parts, recognition is to be inferred from a disposition of the major part of each of these contiguous parcels. The Lords found, that the dispensation for taking sasine at one place, and the reddendo of one duty in the charter of resignation, do not import a civil union of the discontiguous tenements, which therefore are to be considered as distincta tenementa, so as alienation of the major part of each does recognosce that tenement only.
Fol. Dic. v. 2. p. 313. 314. Stair. Harcarse. Sir P. Home. P. Falconer.
*** The reports of this case are No 61. p. 6470. No 67. p. 6500, and No 71. p. 6513., voce Implied Discharge and Renunciation.
