Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION III.

Public Instrument, how far Probative.
Subject_3 SECT. III.

Instrument of Sasine.

Buchan
v.
Taits

Date: 11 February 1669
Case No. No 395.

A sasine given by a father to his son propriis manibus sustained, being registered debito tempore, and accompanied with adminicles.

Click here to view a pdf copy of this documet : PDF Copy

In anno 1623, George Tait of Pirn gave a saisin propriis manibus to George Tait his eldest son, and a bond of that same date, bearing that he had given sasine, and obliging him to warrant the same, reserving his own liferent. Thereafter in anno 1640, he contracts in marriage with Janet Buchan, and for 2500 merks of tocher, obliges him to infeft her in the same lands of Pirn, wherein his son was infeft, whereupon she now pursues a reduction of George Tait younger's infeftment against his daughters, upon these reasons; 1mo, That the sasine propriis manibus, was only the assertion of a notary without a warrant; 2do, That the sasine had not four witnesses; 3tio, That this was a clandestine latent right, most fraudulent betwixt a father and his apparent heir, never having been published, or taken effect by any possession, and cannot prejudge this pursuer, who is a most privileged creditor, and brought a competent tocher with her; 4to, That this being an infeftment by a father to his apparent heir, then in his family, it was but as the legitim of children, which is still ambulatory at their parents' disposal, and so must be affected with this posterior burden of the father's marriage. It was answered to the first, That the bond of the same date with the sasine, acknowledging the same, is a sufficient adminicle, and is equivalent, as if the father had subscribed the sasine; To the second, There is no law requiring four witnesses to a sasine, for that act of Parliament is only where a party subscribes by a notary, but relates not to notary's instruments subscribed by themselves, upon warrants, or adminicles, without which they are not valid with forty witnesses, and without which two witnesses are sufficient; To the third, This infeftment is no ways fraudulent or latent, seeing it is registrated in the register of sasines, and reserves the father's liferent, whose possession is the son's possession, and cannot be prejudged by a deed so long posterior thereto; To the last, Infeftments taken to children by parents being registered by parents, can never be recalled.

The Lords assoilzied from all the reasons of reduction, and sustained the defender's sasine.

Fol. Dic. v. 2. p. 244. Stair, v. 1. p. 602. *** Gosford reports this case:

In a reduction pursued at the instance of Janet Buchan and her daughters, as heirs of the second marriage, procreated betwixt her and George Tait of Pirn, against the children of George Tait younger, eldest son of the first marriage, for reducing his infeftment made to him by his father in anno 1623, upon this ground, that it was a latent clandestine deed, and being only a sasine propriis manibus, without any charter or precept, and notwithstanding whereof the disponee had remained still in possession till the year 1640, at which time, by contract of marriage with the said Janet, he did provide her in liferent to a part of these lands disponed to his eldest son, and her children in fee, which they contended ought to be valid, it being in the power of the father to revoke the foresaid right given to his son, who was in familia;—the Lords, notwithstanding, did sustain the eldest son's right, and the sasine given propriis manibus, seeing it was registrated, within sixty days, in the public register, and that the father at that time had given a bond to warrant the infeftment, and to grant charters and precepts, which they found a sufficient adminicle, albeit it was but a personal right; specially seeing the Town of Peebles, who was superior of that part of the lands disponed to the pursuers, had confirmed the same.

Gosford, MS. No 112. p. 41.