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Scottish Court of Session Decisions >>
Johnston of Corehead, v Johnston of Newton. [1716] Mor 3170 (4 July 1716)
URL: http://www.bailii.org/scot/cases/ScotCS/1716/Mor0803170-006.html Cite as:
[1716] Mor 3170
Found that precepts of sasine became void by the death of the granter, whether issued from the chancery, or by subjects superior.
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In a process of reduction and improbation, and also a declarator of non-entry, at the instance of Corehead against Newton his vassal, the title produced by the pursuer being a charter under the Great Seal in anno 1648, with a precept out of the Chancery that same year, but without any infeftment till the year 1714, that Corehead is served heir to his grand-father, the obtainer of the charter; and, upon this general service, as giving right to the precept of sasine, having infeft himself upon the act of Parliament 1693, giving force to precepts of sasine after the granter and receiver's death.
Compearance was made for Newton's creditors, who objected against the pursuer's title: That the act 1693 concerns only procuratories of resignation and precepts of sasine granted by subjects among themselves; and that, both from the words and intent of the act, and that the words being (considering that procuratories of resignation and precepts of sasine became void by the death of granters, as well as by the death of those in whose favours they were granted) granters here, is not applicable in stile to precepts issued forth of the Chancery, and then it was not the intent of this act to derogate from the rules in Exchequer.
Answered for the pursuer: That the act 1693 makes no distinction betwixt precepts of sasine by subjects, and those by the sovereign; but statutes in general, without any exception, unless of precepts of clare constat; and, since the law has not distinguished, no person is warranted to make a difference, 2do, The reason of the law is full stronger in precepts out of the Chancery than in the other case, the reason expressed being for preventing unnecessary charges in renewing of precepts: Now, this holds strongest in the case of precepts by the Grown, since it is very unreasonable, that, where a party has paid a full composition for obtaining a charter, and precept upon resignation, if he die before the precept be executed, his son or grand-son should be obliged to pay a new composition to obtain a new charter.
‘The Lords found, That sasines given to an heir or assignee, on a precept under the Great Seal, are warranted by the 35th act of the Parliament 1693; and therefore repelled the objection.’
Act. Sir James Nasmith & Robert Dundas.Alt. Sir Walter Pringle.Clerk, M'Kenzie.
Fol. Dic. v. 1. p. 209. Bruce, No 11. p. 14.
