Scottish Court of Session Decisions

Subject_1 PERSONAL and REAL.
Subject_2 SECT. IV.

Pactions, Declarations, &c. by Back-bond or otherwise, qualifying real Rights.

M'Kinnon
v.
Sir James M'Donald

Date: 15 February 1765
Case No. No 50.

The deeds of the actual heir affect the estate, altho' he be afterwards obliged to denude.

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The estate of Mackinnon stood disponed to John Mackinnon younger, and the heirs-male of his body; whom failing, to any other son of the body of John Mackinnon elder; whom failing, to John Mackinnon tacksman of Mishinish. Upon the death of John Maokinnon younger without issue-male, Mishinish served as nearest and lawful heir-male of provision, and was infeft. Some years after, a son, Charles, was born to old Mackinnon. Charles having insisted against Mishinish to denude, the Lords found, That the pursuer had right to the estate of Mackinnon from the time of his birth, and that the defender was obliged to denude in his favour. Afterwards, Charles having obtained himself served heir of provision in special to his brother deceased, brought a reduction for setting aside the sale of the lands of Strath, a part of the estate of Mackinnon, which Mishinish, during his possession, had sold to Sir James Macdonald, who was already infeft. Pleaded in defence, 1mo, That as Mishinish was rightly served, so all his onerous acts and deeds must be effectual against the estate; 2do, That the obligation to denude was merely personal, and could not affect the right of a third party, who purchased bona fide upon the faith of the records, while the right of Mishinish subsisted. Answered to the first, That Mishinish's right was merely conditional, and defeasible in a certain event, in the same manner as rights to lands given in a donation inter virum et uxorem, which, though indefeasible, ex facie, are affected by an implied condition, upon the existence of which they become void, as if they had never existed. A putative heir possesses under a similar condition; and the consequence is, that as soon as the true heir appears, his infeftment becomes void, and every burden flies off, which he has imposed upon the estate. Answered to the second defence, That the obligation of Mishinish to denude was not personal, but was an inherent condition in his right. Nor has this doctrine any tendency to weaken the security of the records; for unless in the case of an entail, the law promises no security to a purchaser from looking into the last infeftment, whether it proceeded on a charter or a retour. If it proceeded on a retour, as in this case, it is incumbent on him to look into the destination in the Charter; and. he cannot be secure, if the service be not agreeable to that destination, or if any of the heirs preferably called either do or may exist. The Lords repelled the reasons of reduction, and sustained the sale of the lands made by Mishinish during his possession.

Mishinish, while in possession of the estate of Mackinnon, of which he was afterwards obliged to denude upon the supervention of a nearer heir, as explained above, had provided his wife in the locality of certain lands, part of the estate of Mackinnon. After the death of Mishinish, his widow having brought an action for the mails and duties of her locality lands, the Lords, upon the same ratio on which they had given the former judgment, decerned for payment against the heir in possession.

Fol. Dic. v. 4. p. 67. Fac. Col.

*** This case is No 34. p. 5279, and No 35. p. 5290, voce Heir Apparent.