Scottish Court of Session Decisions

Subject_1 CONFIRMATION.
Subject_2 SECT. II.

Confirmation of Infeftments to be holden a me & de me.

The Bishop of Aberdeen
v.
The Viscount of Kenmure

Date: 15 July 1680
Case No. No 6.

Sasine being taken upon an obligation to infeft a se et de se, without relating specially to either, a posterior confirmation was found to perfect the sasine a se, not only from the confirmation, but from the date of the sasine; upon which footing, the creditor in an annualrent right having died before confirmation, the annualrent right was found to be in the superior's hands, by non-entry, who confirmed it.

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The Bishop of Aberdeen pursues a poinding of the ground of the baronies of Kenmure and Kirkmichael, upon an infeftment of annualrent.—It was alleged for Kenmure, heritor of these baronies, That the annualrent was in non-entry, by the decease of the Lord Whitekirk, who was infeft therein upon a precept relative both to the infeftment from his author, a se et de se, which not being confirmed in Whitekirk's life, the Bishop's retour should have retoured the annualrent, as being in the hands of Kenmure by non-entry, and not in the hands of the King, who was not Whitekirk's superior till the confirmation; 2do, Whitekirk's sasine was null, as not having four witnesses.—It was answered, That such sasines upon precepts relating to infeftments, both public and base, are always applicable to either infeftment, as the party infeft pleases; and when a confirmation supervenes, the right becomes public, holden of the superior, and the confirmation perfects the sasine from the date, of the sasine; so that the confirmation being before the Bishop's retour, the annualrent was rightly retoured, as in the King's hand, and Kenmure was never superior; and as to the sasine, four witnesses are only required to writs of consequence, to be subscribed by the granters, who cannot subscribe with their hand, and was never extended to sasines, or any instruments of notaries, proceeding upon a warrant sufficiently subscribed.

The Lords found, That if Whitekirk had taken infeftment expressly, to be holden of his author or successor, the annualrent would have been in non-entry till the confirmation; but, the sasine bearing applicable to both infeftments, a se, et de se, that the application made by the confirmation, did exclude the non-entry, and perfected the sasine a se from the date of that sasine; and found no necessity of more than two witnesses in a sasine.

Fol. Dic. v. 1. p. 193. Stair, v. 2. p. 786. *** Fountainhall reports the same case:

Objected against a sasine, that it wanted four witnesses, having only three, and so was null.—The Lords sustained the sasine. Alleged, The Bishop's was in non-entry. Answered, He had a charter of confirmation:—The Lords found, if the charter of confirmation be a charter a me, to be holden of the granter's superior, then the confirmation is drawn back to the date, and stops the non-entry so as to exclude Kenmure; but if the charter was de me, then the confirmation does not stop the non-entry, for the confirmation of a charter de me excludes only the King from the casuality of recognition, but not from non-entry.

Fountainhall, MS. *** The following additional particulars are afterwards reported by Lord Fountainhall.

1680. January 27.

A compriser of Kenmure's estate ratifies an annualrent furth of it; thereafter the comprising is conveyed in Kenmure's person, and expires; and he quarrels the annualrent after the expiration of the legal.—Alleged, He can never be heard, in respect of his author's ratification of it.—Replied, That militated against him indeed during the running of the legal, but cannot be obtruded now, never having redeemed nor used an order.——The Lords inclined to find Kenmure could not question this base infeftment, he being the apparent heir; but it was not then decided.

Fountainhall, v. 1. p. 127.