Scottish Court of Session Decisions

Subject_1 INFEFTMENT.
Subject_2 SECT. VI.

Method of obtaining infeftment where property and superiority coincide in one person. - Method of obtaining it by a singular successor, after resignation is accepted of. - Where the precept does not specially mention the lands. - Method of infefting a Remainder-man. - Where a disposition is adjudged, not containing precept of sasine. - Base infeftment competing with a public right.

Wallace
v.
Dalrymple

Date: 23 June 1742
Case No. No 36.

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Where an heritable bond bore an obligation to infeft in an yearly annualrent out of particular lands, and forth of all other lands belonging to the granter, and lying within the shire of Ayr, as the same are enumerated in the granter's infeftments, with a precept of sasine in the same precise terms, whereon the notary extended a sasine, in which he comprehended other lands as contained in the granter's infeftments than those particularly mentioned in the heritable bond and precept, but without expressing any such infeftments to have been produced to him; the Lords “Found the sasine null as to all the lands other than those particularly expressed in the heritable bond and precept, which were the only warrants produced and published for taking thereof.”

Fol. Dic. v. 3. p. 317. Kilkerran, (Sasine.) No 4. p. 504. *** C. Home reports the same case:

In the process of mails and duties at Wallace of Cairnhill's instance, against Robert Dalrymple of Kelloch, and his tenants, compearance was made for Colonel Dalrymple, who produced an heritable bond, granted to him by Robert Dalrymple, with sasine thereon.

Pleaded for Cairnhill, That in so far as the heritable bond contained an obligation to infeft the Colonel in his lands of Kelloch, he yielded preference to the Colonel; but objected thereto, in so far as it contained an obligation to infeft him “forth of all and sundry the said Robert's other lands, of whatever name and designation the same be of, pertaining and belonging to him, and lying within the sheriffdom of Ayr, as the same are particularly enumerated and mentioned in the said Mr Robert Dalrymple's own, and his predecessors' and authors' rights and infeftments of the same.” In support of the objection, it was urged, That the sasine was null, upon the head of uncertainty, as it did not appear from it, without looking into the common debtor's titles of the lands, whether the same was rite deduced, and as an actus legitimus, it ought to be complete in itself, without any dubiety; nor can it ever be effectual in law, if it needs to be explained or supported by production of other deeds. What fatal effects such a sasine, if valid, would produce, with regard to our records, is obvious. It behoved to put all the lands therein mentioned extra commercium, when perhaps none of them belong to the common debtor. This, instead of clearing up to the lieges what lands are encumbered, and what are free, the only design of the records, tends to the direct contrary.

Pleaded for the Colonel, That his sasine was regularly taken in all the lands contained in his author's infeftment, enumerated in the precise terms thereof; and that, in consequence of a process and decreet of poinding the ground, he had been in possesion conform for near 20 years; that, by our antient feudal customs, possession alone was sufficient for charter and sasine, and still it removes any suspicion that the Colonel was grasping at an infeftment larger than his right; the heritable bond was granted at London, where the debtor had not the rights of his lands, and it was impossible to carry in one's memory the names and descriptions of the particular small mailings; Kelloch the principal is mentioned, and its pertinents, and reference is had to the debtor's infeftment for the particular enumeration of the rest; and, as soon as the bond was brought to Scotland, sasine was taken thereon, in terms of the debtor's infeftment.

The Lords sustained the objection against Colonel Dalrymple's sasine as to all lands not specially named in the precept.

C. Home, No 198. p. 330.