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. V.

Freeholders must be infeft on proper Titles, and their infeftments recorded, year and day before Enrolment.

Andrew Houston
v.
James Ferrier

Date: 23 January 1781
Case No. No 173.

Freeholders cannot reject a claimant, because his author's right is fettered by a strict entail, although the fetters appear from the titles produced.

Click here to view a pdf copy of this documet : PDF Copy

A a meeting of the freeholders in the county of Dumbarton, in 1780, Mr Houston claimed to be enrolled upon certain lands, part of the barony of Cumbernauld. For instructing his qualification, he produced, inter alia, the charter of Lady Elphinstone, proprietrix of that barony; and a disposition from her, in his favour, containing an assignation to the charter and precept of sasine inserted in it, so far as respected the particular lands upon which his claim was founded.

As Lady Elphinston's charter, however, contains strict prohibitory, irritant, and resolutive clauses; to this claim it was

Objected by Mr Ferrier; The rights produced are of a precarious and resolvable nature, the charter bearing in gremio, that the claimant's author shall not grant such rights, and, if she attempt it, that the grants shall be, ipso facto, void and null.

In deciding the merits of this objection, the freeholders do not go begond their proper sphere, by judging of a progress of titles, or of the rights of third parties. Ex facie of the titles produced, they only convey a limited or qualified right, subject to a power of defeasance, competent, by the tailzie engrossed in the charter, to every heir of entail. On this account, this case differs from that of Campbell of Shawfield against Mure of Caldwall, No 8. p. 7783, where the entail did not appear from the production made by the claimant.

It is against the principles of the constitution, that rights entirely pendent on the will of third parties, should give a right of representation in parliament.

The statute 1681, in affirmance of these principles, renders all redeemable or defeasible estates ineffectual to create a qualification. The exception of wadsetters, and others, particularly mentioned in the act, confirms the rule as to other rights; and the statutes of Queen Anne, of 7th and 16th Geo. II were enacted to reform the abuses which had crept into this part of our law by the devices of persons desirous of having more than their due share of the legislation.

It has been found, in numberless instances, that dispositions, reserving power of burdening, or revocation, do not establish a freehold claim. It can make no distinction, whether these powers are in favour of the granter, or of a third party; whether they are to operate upon payment of a sum of money, or without any such consideration; whether they are expressly stipulated, or arise from the nature of the transaction itself. This may be clearly collected from the terms of the oath imposed on electors by 7th Geo. II. The party called upon must swear, ‘that he has come under no obligation, dirictly or indirectly, for re-disponing or re-conveying the lands, in any manner whatsoever; or making the rents or profits effectual, to the use or benefit of the person from whom he has acquired the estate, or from any other person whatsoever.’

If a person were to burthen a disposition with a clause, declaring, That, as he stood bound to convey the lands to a third party, it should be therefore lawful to the disponer's eldest son to redeem, upon payment of an elusory sum, or to set aside the right so granted; such conveyance surely could not give a right vote. Yet the present case is, in substance, precisely similar; the only difference being, that the stipulation occurs in a tailzie, and is implied, instead of being expressed.

Answered for Mr Houston; To found the present objection, it is necessary to shew, 1mo, That the qualities and limitations affecting the claimant's right are intrinsic, and such as the freeholders can competently discuss; and, 2do, That they deprive him of a freehold qualification.

The author's charter, indeed, contains a very strict entail; but the precept of sasine, which is assigned to the claimant, is fettered by no litimation, and he is not concerned with any other part of the charter.

Nor do the irritancies contained in the charter, afford a complete evidence of the defeasibility of the claimant's right. To render an entail effectual against singular successors, it must be inserted not in one charter, but in all the investitures. It must likewise be recorded in terms of the statute. The decision, Campbell against Mure, is precisely in point. Indeed, it would be highly absurd, that country gentlemen should be either obliged, or entitled, to determine the validity of entails, and their effects as to the singular successors.

Neither is a defeasible right, on that account, exceptionable, as the foundation of a freehold claim. The statute 1681 only respects rights which are subject to redemption, either of their own nature, or by the stipulation of parties; and the act of Queen Anne only extends the prohibition to ‘dispositions redeemable for payment of sums of money.’

There are many rights subject to personal challenge, or defeasance, at the instance, of third parties, which are nevertheless absolute in their nature, which were never intended to be the subject of discussion before freeholders, and which have been held to establish an indisputable right to a qualification. For instance, a disposition to lands, granted on death-bed, is subject to reduction ex capite lecti, and a gratuitous conveyance, by a person insolvent, is subject to challenge at the suit of creditors; But, was it ever heard that these faculties, competent to heirs and creditors, were assumed by a court of freeholders, as reasons for keeping from the roll the party favoured by these conveyances? In the same manner, a deed of entail founds a jus crediti in the substitutes, in consequence of which, they may set aside alienations in contravention of the entail; yet these alienations are good against every person, till reduced by the heir of entail, and may be secured even against him by the positive prescription.

The Lords repelled the objection.

For Mr Houston, Lord Advocate, Niel Ferguson. Alt. Ilay Campbell. Fol. Dic. v. 3. p. 424. Fac. Col. No 20. p. 30.