Scottish Court of Session Decisions

Subject_1 MEMBER of PARLIAMENT.
Subject_2 DIVISION IV.

Decisions common to qualifications upon the old extent and valuation.
Subject_3 SECT. I.

Vassals in lands forfeited by the superior. - Fishings may be joined to lands to complete a qualification. - Proprietor pro indiviso. - Feu-duties payable out of church-lands. - Mortified lands sold. - To give a qualification there must be a feudal vassal in the lands. - Bodies corporate. - Minors. - Exchange of pieces of land. - Infeftment in virtue of a clause of union, and dispensation in a Crown charter. - Burgage lands sold by the burgh. - Where the superior is unentered. - Person divested by a trust-deed. - The claim must describe the title for enrolment. - Eldest sons of Peers. - Charter granted by a factor loco tutoris. - Roman Catholics. - Officers of the Revenue.

Robert Muir and Charles Dalrymple
v.
Gilbert M'Adam

Date: 7 March 1781
Case No. No 114.

A person who bad granted a trust disposition of his estate for behoof of his creditors, found not entitled to vote, titled to rary The cent was arrested, wards foun in the case which follows.

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At the meeting for electing a Member of Parliament for the county of Ayr, in 1780, it was Objected by a freeholder to the title of Mr M'Adam of Merkland, then standing upon the roll, That he had divested himself of the lands on which he was enrolled, by a trust-deed, containing procuratory and precept, in favour of certain gentlemen, for behoof of his creditors. By doing so, his right became precarious and extinguishable at the will of another, and consequently ceased to entitle him to a freehold qualification.

This challenge was brought before the Court of Session.

Pleaded for Mr M'Adam; A. trust conveyance does not absolutely divest the granter, althought infeftment has followed thereon. At any time before sale of the subjects, he may redeem, by payment of the debts secured by the trust, in the same manner as a debtor whose lands are adjudged; and his right is completely restored, by renunciation of the trustees, and without new infeftment.

In this case no infeftment has followed on the trust-right; neither was there any evidence, when the objection was made, that either the trustees or creditors had accepted thereof. It was, therefore, no more than a mandate to sell, which no person ever conceived to be fatal to a qualification.

2do, Mr M'Adam's right to vote is ascertained by the statute 1681, cap. 21. by which it is provided, ‘That no person infeft for relief or payment of sums, shall vote, but the granters of the said rights.’

Pleaded for the Objectors; It has been decided, in numberless instances, that a disposition with procuratory and precept, did incapacitate the granter from voting; and there is no distinction in law arising from the purposes of such grants.

If the trustees had executed the procuratory, or obtained confirmation of the infeftment taken on the precept, they would have become the Crown's vassals, and the truster's right would have resolved into a reversion, which was personal, and would be taken up by his heir, by general service. Nothing prevents the trustees from taking these steps at any time.

2do, In rights for relief or security of sums of money, although the incumbrance may render the property useless, or of little value to the proprietor, the radical right still remains in him. In trust dispositions, the granter's right may, in a moment, be totally annihilated; and, in the present instance, it is already entirely dissolved, the trustees having sold the subjects at a price inadequate to the payment of the truster's debt.

The Lords “sustained the objection, and ordered the respondent to be expunged from the roll.”

Act. George Fergusson. Alt. James Boswell Fol. Dic. v. 3. p. 417. Fac. Col. No 50. p. 88.