Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.

The King's Advocate and Solicitor
v.
Strauchan of Kinnaldy

Date: 13 November 1677

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November 13.—The Advocate, and Sir William Purves as his Majesty's Solicitor, pursues Strauchan of Kinnaldy for the casualty of ward and marriage, fallen by the decease of ————Bannerman of Elsick, who stood last infeft as the King's vassal in these lands, and who had disponed them in favours of this Kinnaldy a little before his death. Vide supra, No. 571, Alex. Arbuthuct against Barclay, 14th June, 1677.

It was Alleged,—That no casualty was due by Elsick's decease; because he was denuded by disposition, whereupon resignation had followed in exchequer before his death; and so the King having accepted of his resignation in favours of a third party, Elsick was denuded and discharged of any thing could befal the King by his decease, and the other came to be in place of vassal. Whereunto it was

Replied for the King, by Sir George M'Keinzie, his advocate,—That the rule in law to know if those casualties of ward and marriage were befallen to the superior, yea or not, was, to consider whether the person by whose decease they are contended to be opened and devolved, stood last infeft, yea or not; or if he had infeft another publicly holden of the superior. And it impinges on the principles and foundations of the feudal law to assert, that a naked resignation, without any more following thereon, does so denude, as to intercept the casualties falling by the decease of the resigner; for however these casualties be odious, and so not to be extended, yet this is no stretch, but a most natural and genuine consequent of feudal rights; by which a resignation is an incomplete step, and gives no real right to the property, till it be perfected and consummated by infeftment; and affords no more but a personal action at the instance of him in whose favours the resignation is made, against the superior, to grant a charter upon his acceptation of the resignation; so that the jus in re, or dominium, stays with the resigner till the resignation be perfected by infeftment following thereon; and till then the resigner is never fully divested. Whereof this is an unanswerable demonstration, that if the resigner make a second resignation in favours of another person, and he perfect his resignation by passing infeftment before the first, he will be preferred in law to the other party, in whose favours the first resignation was made and accepted. And that this is undoubted law, and never questioned till now, appears from Craig, whose opinion is of no small authority. He, page 318 et seq. tells us, a resignation consists ex tribus partibus,—the act of resignation,—the superior's acceptation,—and, lastly, the charter, and the tradition and investiture given to him in whose favours the fee was resigned; and he adds, Nihilque operatur resignatio donec totus absolvatur actus, nee resignans interea dominio privatur; than which there can be nothing more expressly positive and clear.

On the 14th of November, 1677, the Lords advised this debate, after it was resumed by my Lord Pitmedden as his trial in the Innerhouse, conform to the act of sederunt, before his admission, and that he had given his judgment in it first. The Lords sustained the summons of declarator, and repelled the defence, in respect of the reply; and found the naked resignation did not stop the falling of those casualties upon the resigner's death, unless infeftment had been expede on the resignation likewise before his death.

Sir George Lockhart, though he was for the defender, yet wondered if the Lords could make any stop and demur on so clear a case, as to give it a large hearing in their own presence; and remembered a stronger defence than this was repelled in December 1668, or January 1669, in the declarator Duke of Hamilton against David French and the Tenants of Milneburne; which vide supra, at great length, [Vol. II, page 450;] viz. that one having apprised his debtor's land, charged the superior to enter him, who delayed; medio tempore the debtor dies; the lands holding ward, and the superiorac claiming the ward. It was contended by the appriser, that the charging the superior was equivalent to an infeftment, and so behoved to stop the ward, as it would have done; and yet the Lords repelled this.

Advocates MS. No. 652, folio 306.