Scottish Court of Session Decisions

Subject_1 IMPLIED DISCHARGE and RENUNCIATION.
Subject_2 SECT. IX.

Effect of a Charter of Confirmation.

His Majesty's Advocate
v.
The Creditors of the Laird of Cromarty

Date: 23 February 1683
Case No. No 60.

A confirmation, after the major part of land is alienated, and before the gift of recognition, secures the right confirmed.

An alienation made by a ward-vassal, confirmed by the superior before recognition is incurred, is not only safe from recognition, but cannot be brought in computo with after alienations to infer recognition; but, where the major part is alienated, the confirmation of any one of the alienations will not relieve the others from recognition already incurred, tho’ laying aside the subject confirmed, the others do not extend to the half.

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In a declarator of recognition, pursued by his Majesty's Advocate against the Creditors of the Laird of Cromarty, it was alleged, That base infeftments, confirmed after a concourse of others, extending to the major part of the lands, before the gift, could not fall under recognition, neither could they fall in computo, to make up the major part, so as to make the rest recognosce.———The Lords found, that though the confirmation did secure the infeftment confirmed, yet, before confirmation, the major part being alienated, and so jus being regi acquisitum, the same behoved to fall in computo, to make the rest of the lands recognosce. It was further alleged, That Cromarty, the common author, having obtained a new infeftment with a novodamus, any base infeftments anterior to the novodamus, could not enter in computo with the subsequent base infeftments, to make up a ground of recognition, seeing the novodamus was an original right. And it being replied by the King's Advocate, That a novodamus did sufficiently secure the vassal, and did denude the King of any recognition fallen; but there being no recognition fallen the time of the novodamus, the base infeftments that were anterior, being less than the half, the novodamus could not stop the concourse of the antecedent base rights with the subsequent;——The Lords found, that albeit there was no punishment inflicted by the law of the kingdom until the major part was alienated, yet the alienation of any part of the feu, without the superior's consent, was an inchoate delict, and that the novodamus was virtually a confirmation of all the anterior base rights, and therefore found, that the novodamus did secure the vassal, so that antecedent base infeftments could not enter in computo, nor be a ground of recognition, with subsequent base infeftments, to make up the major part. It was alleged, 3tio, That such base infeftments as were out of both feu, ward, and burgage-lands, or out of lands belonging to several heritors, to wit Cromarty and my Lord Tarbat, they being correi debendi, cannot be grounds of recognition for the hail value of the sums therein contained, but allenarly for a proportion of the sums effeiring to the ward lands, being compared with the other lands; in regard that albeit the creditor might take himself to the ward lands for the hail, yet there was a proportional real right of relief competent out of the rest of the lands.—— The Lords, in respect it was optional to the creditors to uplift the whole annualrent out of the ward lands, therefore they sustained these rights, for the hail value of them, to be grounds of recognition. It was, 4to, alleged, That such base infeftments as were granted under trust, notwithstanding whereof the granter remained in possession of the lands, and the writs were undelivered, (being in the granter's charter chest) ought not to come in computo. It was answered by the Advocate, That the superior was not concerned what trust was betwixt the granter and receiver, and these qualifications were not relevant, seeing base infeftments, without being clad with possession, are a sufficient ground of recognition, and the grounds being lying in the disponer's charter chest, were not sufficient, seeing they might have been delivered and re-delivered back again; and, if that were sustained, it would evacuate all recognitions.——The Lords repelled the objection thus qualified, and sustained the grounds of recognition.

Fol. Dic. v. 1. p. 435. P. Falconer, No 53. p. 30. ***Harcarse reports the same case:

In a declarator of recognition against the Creditors of Cromarty, it was alleged for the defenders, That all rights confirmed, whether a me or de me, before the major part is disponed, are secure themselves, and cannot be brought in computo with other alienations made thereafter, to make these posterior alienations to recognosce, although confirmations, after disponing of the major part, would only secure the rights confirmed, but would come in computo with others not confirmed; which allegeance the Lords found relevant.

2do, It was alleged, That confirmations a me, and resignations, being original rights, even made after the incurring of recognition, should secure the lands resigned as a distinctum tenementum, without a novodamus; and if it did not operate, that the new vassal got nothing, seeing the recognition carried away the property.—— The Lords repelled this allegeance against the King and his donatar. But this is more debateable against private superiors. And here recognition being made by a father to his eldest son, the case was less favourable than if it had been granted in favours of a stranger.

3tio, It was alleged, That when the lesser part is disponed base, without consent of the superior, and the disponer gets a charter of resignation with a novodamus, and thereafter dispones a part without consent, these alienations before and after the resignation cannot (in respect of the novodamus) be conjoined to make the major part fall and recognosce.

Answered; There being no casualty fallen the time of granting the novodamus, it could not take off the contempt quoad those sold before; so that how soon the major part came to be disponed after the novodamus, the recognition belonged to the King; although it is clear, that if the major part had been disponed before the novodamus, and consequently the casualty had existed, the supervenient novodamus would have secured all.

Replied; Novodamus secured as effectually as if the King had got a resignation ad remanentiam, and then disponed. 2do, Though recognition was not completed the time of resignation, it was inchoated. 3tio, The novodamus is virtually a confirmation; and as it would have transmitted the right of recognition, had it been complete, so it must purge the quality of contempt when it was incomplete.——The Lords sustained the allegeance, and found the novodamus secured the alienation before the resignation, though the major part was not then disponed, as effectually as if these particular rights had been confirmed the time of the resignation. But it appears, that if the superior was denuded by a gift the time of granting the novodamus, the novodamus would not then have that effect. But a gift will infer Warrandice.

4to, It was alleged, That, in the case of wadsets out of ward, blench, and feu-lands, holding of one or more superiors, granted by one or more persons jointly, the sum of the wadset cannot be considered wholly in relation to the ward-lands, but proportionally.

Answered; Seeing a wadsetter may take himself to any part of the lands wadset, the ward-lands should recognosce, although he might have relief pro rata off the other persons bound in the wadset, seeing in that case the contempt is nothing lessened; and if it were otherwise, such methods would always be taken to prevent recognition. And the interlocutor between the Laird of Dun and Keith of Jackstoun, voce Recognition, which imported the contrary, was thereafter stopped.——The Lords repelled the allegeance in respect of the answer.

5to, It was alleged, That Cromarty having granted an alienation to his own servant, and kept the charter and sasine always in his own possession, without delivering the same, that must either be reputed a trust for his own behoof, or a fraudulent deed, to incur recognition in prejudice of the former rights granted to the creditors.————The Lords found, that the infeftment, though in trust, made a change of the vassal for a time, and consequently inferred recognition. And found dole and fraud in the disponer relevant to preclude him from all benefit he could have by the gift; but that it could not prejudge the superior, unless he were particeps fraudis. And they found, that the disponer's keeping the charter and sasine in his own person, was no qualification of fraud; for the superior might have disponed it avowedly without any onerous cause; and so the concealing could not be out of any evil design, as being of no advantage to him.

6to, The Lords found, that redeemable rights paid (if not actually renounced) before the concourse of other rights, came in computo to make up a major part. And found, as in Muirie's case, No 61 infra, that inhibition did not hinder recognition; but found that sasines wanting essential solemnities, as the words vidi scivi, &c. or traditio terræ et lapidis, &c. were simply null, and did not infer recognition. It was debated, though not determined, if sasines only null quoad third parties, for want of registration, should make recognition. See Recognition.

Harcarse, (Recognition.) NO 825. p. 231.