Scottish Court of Session Decisions

Subject_1 IMPLIED DISCHARGE and RENUNCIATION.
Subject_2 SECT. X.

Effect of Public Infeftment with respect to Recognition.

Hay
v.
Creditors of Murie

1681. July 7,and March 1683.
Case No. No 67.

Public infeftment of the whole lands does not save from recognition, if the base infeftments, granted by the purchaser and his author, extend above the half.

But a public infeftment of part of the lands, is safe against recognition, if not already incurred.

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Confirmation of a base right must save from recognition, quia hoc agitur by the confirmation; or, if a particular part of the barony be disponed to be holden of the superior, a charter of resignation or confirmation, will also save that part from recognition; but where the whole ward-lands are disponed to be holden of the superior, a charter of resignation or confirmation will have no effect to save from recognition, because no more is intended thereby, than to receive one vassal in place of another, subjected to the same burdens and to the same grounds of challenge that lay against the former vassal; and therefore, in this case the deeds of the author will be conjoined with those of the singular successor to infer recognition, as if all were granted by the same person.

A purchaser of a part of a barony holding ward, being infeft upon a charter of resignation, which imports the superior's consent, no base right thereafter granted by the author can be brought in computo, to subject the public infeftment to recognition. But a charter of resignation will not save the lands contained in the charter from recognition, where the major part was alienated before the date of the resignation. And as to base rights granted by the resigner after resignation, before the same is completed by infeftment, the Lords found, that such right, granted before subscribing of the charter in the case of private superiors, and before appending of the Great Seal, where the King is superior, are to be brought in computo to infer recognition of the lands resigned, notwithstanding of the resignation. And the reason of the difference betwixt the King and a subject superior, is, that the King's consent is not completed till the Great Seal is affixed, though the signature be past his Majesty's hand, and compounded in Exchequer; but in this case, there being no base sasine betwixt the appending of the seal and taking infeftment upon the charter of resignation, it was not determined whether a base infeftment, granted in these circumstances, behoved to be brought in computo to infer recognition of the land resigned.

Fol. Dic. v. 1. p. 436. *** Stair reports this case:

1681. July 7. —John Hay, as donatar by the King to the recognition of the barony of Murie, pursues declarator upon particular infeftments produced, that the Lairds of Murie have, by several infeftments, granted by their authors and singular successors, alienated the major part of the barony of Murie holden ward, without consent of the superior, and condescends upon an infeftment granted to the Lady Balegarno of an annualrent out of the barony, bearing, “That her father was cautioner for Murie in several sums, for relief whereof, he grants him an annualrent effeiring to the sum, being about L. 2000, with power to enter in possession at the next term, he always applying what he uplifts for paying of the Creditors,” according to which, the Lady Balegarno entered in possesion. The Creditors alleged, The condescendence was not relevant to conjoin the deeds of the author and singular successors in this barony, because the singular successors being received by the superior upon resignation, or by confirmation, the superior's acceptance of them as his vassals imports his consent without his reservation, and thereby he passeth from any partial ground of recognition, incurred by the deeds of the resigner; for if he did receive the purchaser by confirmation, he having thereby confirmed the purchaser's right, cannot for any thing preceding quarrel the same. And an infeftment upon resignation is in all points equivalent to a confirmation, likeas if the superior had confirmed any of the base rights, he could not quarrel the same, or make use of it as a total, or partial cause of recognition, so when he confirms the new vassal's charter from the disponer, he cannot quarrel that confirmation upon any thing preceding. The pursuer answered, That a superior's confirmation of a subaltern infeftment not holding of him, imports his ratification of that right, and he cannot quarrel the same upon recognition, by deeds compleating before the confirmation, nor can he make use of the deeds confirmed to infer recognition against his immediate vassal; yet the King, who cannot be prejudged by the negligence of his officers, by confirmation or subaltern infeftments, doth not exclude recognition, incurred by other deeds than the right confirmed, unless there was a novodamus; but when the King, or any superior, receives a new immediate vassal, which is by two ways altogether equal, either by a charter upon resignation, or by a charter of confirmation, he is understood to give the new vassal no more right than the resigner had, and therefore it would not purge a recognition incurred before, except the new charter had contained absolute warrandice, neither would it exclude a prior ward, though it would exclude non-entry. But if the subaltern rights of the author and acquirer were not to be conjoined, then the author might have aliened one third part of the fee, and the acquirer another third part, who might also infeft another singular successor, and if he might alienate a half, this would extend to the whole fee, by which the vassal would have nothing to serve the superior, and if this were sufficient against the King, who passeth all infeftments by resignation or confirmation of course, none but fools could incur recognition; but now seeing all sasines are registrated, the purchaser may certainly know how far the fee he hath purchased was burdened before; and if he superadd a further burden, whereby the whole burden exceed the half value, his deed is a delinquence against the superior, of knowledge and supine negligence, and it being joined with the former deeds, completes the recognition.

The Lords found, that the infeftments by ward-vassals, without consent of their superiors, though they are valid, while they exceed not the half the value of the fee, yet by the super-addition of others, whether it be heirs or singular successors, the whole infeftments conjunctim exceed the half of the fee, recognition is thereby incurred, and the infeftments by the ward-vassal become void, as well that which completes the recognition, as those which were before valid, albeit there be intervening infeftments by the superior upon resignation, or by confirmation, unless these infeftments were not of the whole barony or tenement, but of a part thereof, dismembered from the whole, which being so accepted by the superior, the deeds of the author cannot be conjoined with the deeds of the singular successor in a part; or if the resignation bear the barony or tenement, so much thereof in superiority, expressing the particular subaltern infeftments, these subaltern infeftments exprest are thereby understood as consented to by the superior, and cannot come to make up any part of the cause of recognition. The defenders further alleged, That the infeftment for relief could make no part of the recognition, because it is only conditional and casual in case of distress. It was answered, That an infeftment of relief, which could only take effect upon distress, might only be considered as a hazard, as when a liferent is granted, the husband being alive; but in this case, the infeftment takes present possession, and the benefit is only applicable to the Creditors, yea the cautioner hath now satisfied the debt, and so it is altogether equivalent to a wadset, or to an annualrent immediately granted to the Creditors, and so must exhaust so much of the rent or value of the fee, It was reviled, That here was no distress, and if the cautioner voluntarily paid, it cannot alter the debtor's case.

The Lords found, that the infeftment for relief, though attaining present possession, was not equivalent to a wadset or annualrent immediately granted to the creditor, and that the voluntary deed of the cautioner without distress, was not to be regarded, and therefore found it might be conjoined as a conditional distress by hazard; so that for instance, if the half of the fee were alienated, this infeftment for relief would make the alienation of more than the half, and infer recognition; for the Lords thought that a wadset with a back-tack, though of the whole barony, would not infer recognition, unless the sum exceeded the value of the half of the barony, or an infeftment of the whole for payment of sums, but only to be considered as to the value of these sums. See Recognition.

Stair, v. 2. p. 885.

*** See Harcarse, Sir P. Home, and P. Falconer's report of this case, No 61. p. 6470.