Scottish Court of Session Decisions

Subject_1 FIAR, ABSOLUTE, LIMITED.
Subject_2 SECT. V.

Clause of Return.

Captain Robert Johnston,
v.
George Marquis of Annandale, and his Tutor-In-Law

Date: 31 July 1759
Case No. No 39.

Clause of return in a vassal's charter, is not good against an onerous purchaser.

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Upon the 25th January 1596, Sir James Johnstone, predecessor of the Marquis of Annandale, granted a feu charter of the lands of Willies, to James Johnstone, therein designed his servant, “et hæredibus suis masculis de corpore suo legitime procreandis.”

This charter bears, as its inductive causes, the improvement of the country by feuing, certain sums of money advanced, and faithful services done and to be done.

It contains the proviso following: “Quod si defecerint hæredes masculi procreandi de corpore præfati Jacobi legitimi, eo casu dictæ terræ, cum pertinentiis, erunt, et revertentur, ad dictum Dominum Jacobum, Militem, præfatis hæredibus suis et assignatis mansuræ in perpetuum.”

The lands were possessed by James Johnstone the vassal, and his descendents, in terms of this charter; and the investiture was renewed by three several precepts of clare constat, in which the clause of return was repeated.

Upon the 21st September 1709, John Johnstone, who stood infeft upon a precept of clare constat containing this clause, disponed the lands of Willies, with consent of Sarah Baillie his spouse, to Robert Johnstone of Wamphray; and at the same time disponed the lands of Stenrieshill in special warrandice, with absolute warrandice both as to the principal and warrandice lands. The disposition bears to be granted for a certain sum of money, as the adequate value of the lands disponed.

Captain Robert Johnstone, the grandson of Robert Johnstone of Wamphray, the purchaser, being served heir cum inventario to his father and his elder brother, took out letters of horning, in terms of the late act of Parliament, against the Marquis of Annandale and his tutor-in-law, and charged them to grant him a charter in terms of the disposition granted to his father by their vassal.

The Marquis, and his tutor, obtained a suspension of this charge; and pleaded, 1mo, That by the clause of return, the vassal was laid under a limitation, and could not dispone the lands in prejudice of the superior's right.

2do, That such a proviso was certainly effectual to prevent gratuitous alienations; and there was no proof, in this case, that the disposition to Wamphray was granted for value.

3tio, If there were such proof, yet Wamphray was not in bona fide to make the purchase, when the vassal's right appeared upon record to be limited.

4to, At any rate, if the superior was at all bound to grant a charter to the disponee, it ought to contain the proviso in the charter 1596, by which the lands might return to the superior, in case of the after failure of heirs male of the vassal's body.

Answered, 1mo, A superior is considered as absolutely denuded of the property by a grant to a vassal, and the heirs male of his body. The vassal, under such a grant, can alienate at pleasure; the right is descendible to his heirs male collateral; and, upon failure of heirs male, the right will not return to the superior, but will devolve to the Crown as ultimus hæres. The superior's claim, therefore, in the present case, must depend entirely upon the clause of return, which can have no stronger effect in his favour, than it would have had between parties not standing in the relation of superior and vassal. In all such cases, if the clause of return was not inserted for a valuable consideration, it is defeasible at pleasure; and here the vassal appears to have paid a price for the feu, and must have agreed to this clause out of mere favour.

2do, If it had even been inserted for a valuable consideration, yet it could only bar gratuitous deeds; and here the sale to Wamphray was made for full value: The conveyance to him mentions this; it is granted with consent of the vassal's wife; it is granted with absolute warrandice; and it dispones other lands in real warrandice.

3tio, The clause contained in the vassal's right, could not occassion any doubt or mala fides in the mind of the purchaser; because the import of the clause was only to prevent gratuitous alienations.

4to, The superior cannot insert in Captain Johnstone's charter any proviso, that the lands shall revert to him upon the failure of the heirs male of the body of the former vassal; because such clause would be inconsistent with the right of the vassal to sell the lands: A purchase of lands which was to continue only during the subsistence of the heirs male of another family, would be no purchase at all. If a change of the vassal is at all admitted, the limitations which were personal to the vassal and his family, must, when that change happens, fly off.

‘The Lords found, That the suspenders were obliged to grant a charter to the charger, and his heirs and assignees whatsoever; and therefore repelled the reasons of suspension.’

Reporter, Lord Colston. Act. Fergusson. Alt. Sir Da. Dalrymple. Fol. Dic. v. 3. p. 218. Fac. Col. No 194. p. 347.