Scottish Court of Session Decisions

Subject_1 MEMBER of PARLIAMENT.
Subject_2 DIVISION IV.

Decisions common to qualifications upon the old extent and valuation.
Subject_3 SECT. II.

Adjudger. - Wadsetter.

Mr James Colquhoun
v.
Captain Duncan Urquhart

Date: 23 February 1774
Case No. No 132.

Previous registration, for year and day, of a renunciation by a liferenter, is not requisite to entitle the fiar to vote.

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Sir Ludovick Grant executed a proper wadset of certain lands affording a freehold qualification, in favour of Sir James Colquhoun, in liferent, and of his son Mr James Colquhoun, in fee.

A few months before Michaelmas, Sir James granted to his son a renunciation of his liferent right; upon which the latter, at the Michaelmas meeting claiming to be enrolled, it was objected to him, That his claim was premature, as it ought to have been a year and a day posterior to the registration of the renunciation; besides, that a proper wadset could not admit a double qualification of fee and liferent. The freeholders having sustained the objections, Mr Colquhoun complained to the Court, and

Pleaded; The first part of the objection is founded upon not distinguihsing between the right of enrolment and that of voting, and in supposing Sir James's renunciation to be an essential ingredient in the complainer's qualification; whereas he had a good title to be enrolled, independent of the renunciation. It was the charter and infeftment which constituted his freehold qualification; and whether the fee were affected with a liferent or not, the fiar's claim to be enrolled was the same in both cases, whatever effect that circumstance might have on the right of voting, which no doubt belongs to the liferenter, if he chooses to take it; but otherwise it as undoubtedly falls to the fiar. The renunciation, therefore, being no ingredient in the complainer's qualification, did not require a year's previous registration.

As to the second part of the objection, it is sufficient to observe, that the statute 1681, which allows of proper wadsets being legal freehold qualifications, so long as they stand unredeemed, authorises no such distinction with respect to liferents, as if they could not subsist on a redeemable right.

Answered; In this case the claim is not entered in the character of naked fiar, to which the renunciation would indeed not be essential, but in that of •sole proprietor, to constitute which the renunciation was necessary; and, therefore, being an indispensable ingredient in the complainer's title, it ought, as well as his charter and sasine, to have been completed a full year before the enrolment. With regard to the other particular mentioned, it would seem that the granting of a wadset to one person in liferent, and to another in fee, was inconsistent with the nature of that right; for a right bearing ex facie to be redeemable quandocunque, admits not of a liferent being created over it.

The Lords (the question being put to enroll simply, or qualificate) ‘ordered the complainer to be enrolled simply.’

Act. Lockhart, J. Grant. Alt. Macqueen. Clerk, Pringle. Fol. Dic. v. 3. p. 416. Fac. Col. No 109. p. 291.